R. v. Frise Date:, 2016 BCPC 249

Citation: R. v. Frise Date: 20160817 2016 BCPC 0249 File No: AH77385857-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. ZACHARY FRISE REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for the Crown: Sgt. R. Stewart Counsel for the Accused: Emily G. Gray Place of Hearing: Victoria , B.C. Date of Hearing: May 11, 2016 Date of Judgment: August 17, 2016

Introduction [ 1 ] This is an excessive speeding charge based on pacing by the officer and not by use of a speed measuring instrument. [ 2 ] Zachary Frise is charged with excessive speeding under section 148(1) of the Motor Vehicle Act . It is alleged this took place on highway 17 (known locally as the Pat Bay Highway) in Saanich on June 21, 2014. [ 3 ] Only the two officers involved gave evidence.

The Evidence [ 4 ] Sgt Stewart of the Saanich Police Department testified that on the afternoon of June 21, 2014 he was positioned in his unmarked Ford F150 police vehicle on an extension of Darwin Avenue in Saanich at its intersection with highway 17. It is also the exit to highway 17 from the Saanich Police Department. [ 5 ] His engine was running and he was monitoring traffic northbound on Vernon Avenue which at that point is the street name of highway 17. [ 6 ] He had a clear view of approaching traffic. He heard the sound of a motorcycle approaching.

He heard it before he saw it. [ 7 ] From his experience with motorcycles, both as a personal rider as well as in his police work, he estimated the motorcycle was still in second gear. [ 8 ] He then noticed the motorcycle in the centre lane and estimated its speed at 90 km/h. The speed on Vernon Avenue at this point is 50 km/h. [ 9 ] As he was about to pursue the motorcycle, he saw in his periphery vision a black Mustang also approaching and it was closing distance on the motorcycle. He estimated the speed of the Mustang to be 100 km/h. [ 10 ] Sgt Stewart pulled in behind the Mustang.

When he caught up to the Mustang, the speed limit of highway 17 was 80 km/h. By this time, they were approaching the overpass of McKenzie Avenue. [ 11 ] Sgt Stewart was then about 100 m behind the Mustang and he was keeping an even distance behind it.

The Mustang was keeping an even speed with the motorcycle. [ 12 ] The speedometer on his F150 was showing a consistent speed of 130 km/h. [ 13 ] After pacing the Mustang for about 800 – 1000m, he engaged his lights. [ 14 ] The Mustang then slowed in speed and as Sgt Stewart came even with the driver’s window, he called out to the driver to follow him and pull over behind him. [ 15 ] The driver of the motorcycle also pulled to the side, and as Sgt Stewart exited his vehicle, the Mustang pulled up behind him and stopped. [ 16 ] Sgt Stewart spoke to the driver of the motorcycle, obtained the keys to it and the driver’s driver licence.

He then walked back to speak to the driver of the Mustang. [ 17 ] He had concluded from what he saw from the time of first observation that they were street racing. [ 18 ] After speaking to each driver, Sgt Stewart accepted the explanation of both that they did not know each other and that the driver of the Mustang was just driving to the ferry terminal at Swartz Bay. [ 19 ] He called for backup and shortly after Cst Ribeiro of the Saanich Police Department arrived. [ 20 ] Sgt Stewart asked Cst Ribeiro to complete a Violation Ticket to the driver of the Mustang for excessive speeding and a notice of impoundment and he dealt with the driver of the motorcycle who was issued a ticket for excessive speeding and served a notice of impoundment [ 21 ] Cst Ribeiro obtained the usual information from the driver of the Mustang and completed a Violation Ticket for excessive speeding under section 148(1) and a notice of impoundment under section 251(1).

Sgt Stewart signed the completed ticket and served it on Mr. Frise. [ 22 ] Mr. Frise was also driving with an expired driver’s licence but since Sgt Stewart was charging Mr. Frise with excessive speeding which came with a vehicle impoundment, he felt that was punishment enough and did not charge him for the no driver’s licence offence. [ 23 ] Sgt Stewart gave evidence that he has been a police officer since 1991 and has been assigned to traffic duties for many years and is currently with the Saanich Police Traffic Safety Unit. He has been trained in the use of radar and laser speed monitoring devices

and has shown he can estimate the speed of vehicles within a range of +/- 5 km/h. [ 24 ] He said the laser unit in his vehicle was activated when he was positioned at Darwin Avenue but he had not used it for several minutes and it had to recycle again before it could obtain a speed. For that reason he could not use it while still stationary when the Mustang and motorcycle passed him. He therefore relied on his estimate of the speed of the two vehicles. Analysis of the Evidence and the Submissions [ 25 ] The issue put by Mr. Frise is that the Crown has not proven beyond a reasonable doubt the speed of Mr.

Frise’s vehicle. The submission is based on what he says is the short period of time that Sgt Stewart paced Mr. Frise’s vehicle. [ 26 ] For the following reasons, I am satisfied beyond a reasonable doubt that during the period of pacing northbound on the portion of highway 17 between the run off to and run on from McKenzie Avenue the vehicle Mr. Frise was driving was travelling at 130 km/h in a zone posted at 80 km/h. [ 27 ] The Mustang that Mr.

Frise was driving first attracted the attention of Sgt Stewart when he was stationary on highway 17 at the exit from the Saanich Police Department. [ 28 ] The noise from a motorcycle and then a visual of it travelling at a speed he estimated was significantly higher than the posted speed of 50 km/h attracted his attention. [ 29 ] As he was about to begin pursuing it to issue the driver of the motorcycle a ticket, the Mustang driven by Mr.

Frise came into view and his estimate was that it was travelling faster as it was gaining on the motorcycle. [ 30 ] The impression Sgt Stewart had as he was observing this was that the two vehicles were racing each other. This impression strengthened as the speed zone transitioned from 50 km/h to 80 km/h and the two vehicles increased their speed and remained in close proximity to each other. [ 31 ] Sgt Stewart caught up to both vehicles as he approached the runoff from the highway to McKenzie Avenue.

He was approximately 100 metres directly behind the Mustang and the motorcycle was a short distance ahead of the Mustang in the lane to their left. [ 32 ] Sgt Stewart kept an even distance behind the Mustang for approximately 900 metres and the speed on the speedometer of his police vehicle showed a steady 130 km/h. [ 33 ] Another factor Mr. Frise says should raise reasonable doubt is that while pacing Mr.

Frise’s vehicle, Sgt Stewart was also observing the motorcycle slightly ahead of the Mustang and he therefore could not have been observing his speedometer for much of the distance of pacing. [ 34 ] In my view, there is nothing in the evidence to suggest to me that Sgt Stewart could not keep an accurate and reasonably constant observation of his speedometer while simultaneously observing two vehicles in close proximity and in front of him. [ 35 ] Sgt Stewart’s answers on cross examination on deficiencies of evidence of pacing did not in my opinion diminish the strength of his evidence. [ 36 ] Finally, as Mr.

Frise did not give any evidence, as is his right, I have no evidence to cause me doubt of the correctness of Sgt Stewart’s evidence. Decision [ 37 ] I accept on all the evidence that the speed of the Mustang was 130 km/h and that the distance over which the pacing took place on highway 17 was sufficient to establish that speed. [ 38 ] In reaching this conclusion, I am informed by two decisions: R. v. Pires , 2004 BCSC 159 and R. v. Soriano , 2012 BCSC 889 . [ 39 ] I therefore find Mr. Frise guilty of excessive speeding under section 148(1) of the Motor Vehicle Act . The fine is $368. ____________________ H.W.

Gordon

Judicial Justice