R. v. Brisson Date:, 2016 BCPC 336

Citation: R. v. Brisson Date: 20160503 2016 BCPC 336 File No: AH79348845 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M. BRISSON REASONS FOR JUDGMENT OF JUDICIAL JUSTICE JOSEPH-TIWARY Appearing for the Crown: Sergeant Reader Appearing on his own behalf: M. Brisson Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: December 18, 2015 & May 3, 2016 Date of Judgment: May 3, 2016

[1] Mr. Brisson is before the Court charged with an offence under Section 144(1) b of the Motor Vehicle Act. He is a police officerwho was at the material time driving a police cruiser in the normal course of his duties. A collision occurred between the police cruiserand the vehicle just ahead of it. [2]

Section 144 [1] b of the MVA reads as follows: A person must not drive a motor vehicle on a highway without reasonable consideration for other persons using the Highway. [3] The Hon. De Walle J in R. v. Thompson, [1994] BCJ 2239, British Columbia Provincial Court, Terrace Registry No 15340, inconsidering the offence of driving without reasonable consideration for others using the road, made the following observation: “A driver is confronted with an infinite number of possible situations.

The factual circumstances are constantly shifting, depending onroad visibility, weather conditions, traffic conditions and a myriad of other circumstances. The Motor Vehicle Act details a number ofspecific regulations but it is clearly impossible to contemplate every possible circumstance which may confront the driver. Therefore it isreasonable, in my view, for the legislature to prescribe a reasonable standard of care based on a reasonably prudent driver. Section 149(1)b {now 144(1) b} conveys to the driver in an intelligent way what the prescribed conduct is.

It is the conduct of a reasonable person inreasonable consideration for others using the road.” [4] It appears appropriate to highlight at the outset that in Ontario, a careless driving charge contrary to

section 130 of the HighwayTraffic Act may be made out in one of two ways that is where the driver operates either without due care and attention or withoutreasonable consideration for others using the highway. Ontario case law on careless driving has been relied on by British ColumbiaCourts in respect of

Section 144 offences of driving without due care and attention as well as driving without reasonable considerationfor other persons using the Highway. [5] The Ontario Court of Appeal in R. v. Beauchamp, (ON CA), [1953] 4 D. L.R. 340, 16 C.R. 270 articulated thetest of careless driving as follows: “The test where an accident has occurred is not whether if the accused had used greater care or skill, the accident would not havehappened.

It is whether it is proved beyond a reasonable doubt that the accused, in the light of existing circumstances of which he wasaware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to otherpersons using the Highway the consideration that a driver of ordinary care would have used or given in the circumstances.” [6] The Supreme Court of Canada in R. v. Waite, [1989] 1 SCR 1463 explained the distinction between careless driving, as aregulatory offence, and a criminal dangerous driving charge.

Inadvertent negligence is required for regulatory offences, with advertentnegligence being required to discharge the burden in a criminal charge. [7] The BC Provincial Court in R. v. McDorman (1983), 23 M.V.R. 165 concluded that the cumulative effect of the defendant'sconduct as a whole must be examined. The test is an objective one: R. v. Malcolm, 2015 BCSC 306. [8] In R. v. Beauchamp referred earlier, the Court observed the issue is not whether or not the driving conduct of the defendant atthe relevant time was flawless.

It must be of such a nature as to be ‘considered a breach of duty to the public and deserving ofpunishment’. In R. v. Globocki (1991), 26 MVR (2d) 179, the Ontario Provincial Division, at page 185, also observed a standard ofperfection is not required. [9] In R. v. Wilson, (ON CA), [1971]1 O.R.349, 1 C.C.C. (2d) 466 (Ont. C.A.), the Court observed ‘mereinadvertent negligence, whether of the lightest type or not, will not necessarily support a conviction’ (my emphasis).

Crown must provebeyond a reasonable doubt that the driver operated the vehicle without reasonable consideration for other persons using the highway. [10] In R. v. Ali, (ON CJ), [2003] O.J. 2045, the driver who had just obtained a permit, was at the time drivingwithout a qualified driver. Just after having stopped for a red light and in making a right turn, she went over the curb and struck severalpedestrians, including an infant.

Despite not accepting as plausible or credible her explanations of having lost control because thesteering wheel in her hand jumped, and further also finding her guilty of driving without an accompanying qualified driver, the Courtconsidered all of the other circumstances, such as, the fact that she was within the speed limit around a corner, intending to turn right topark, had stopped at the red light earlier, used elevation because of her short stature and the boyfriend accompanying her had a G2license as an indication of the disputant’s foresight and consideration of potential visibility problems.

The Court in finding that she actedreasonably and not without consideration of others came to the conclusion that the accident was caused by a momentary error injudgment (paras 87 and 88), saying the law requires reasonable skill and not perfection in operating a motor vehicle. The Court also saidthat the defendant did consider the consequences of her actions. After considering the authorities and finding that she had stepped on thepedal instead of the brakes, the Court said her mere inadvertent negligence there was not deserving of punishment. [11] In the often cited much earlier case of R. v.

Namink, [1979] O.J. No.317 , Killeen J of the Ontario County Court sitting onappeal, in an oral decision (paragraphs 9 -11), said: “Was, therefore the accused guilty of careless driving? That is the question. Was the accused guilty of conduct from which the courtcould infer, beyond a reasonable doubt that the accused was driving without due care and attention, or without reasonable considerationfor other users of the highway.

It is trite law to say that this is a quasi-criminal charge, and that to make out a charge under this section, the evidence must bespeak conduct deserving of punishment in the way of a conviction under this

section of our highway Traffic Act. Mere momentary inattention or a simple kind of error of judgment, does not bespeak the kind of conduct over which the net of the

section is cast . (my emphasis) Here I see no evidence of the kind of conduct aimed at in this section. At best, and I put it that way, “at best” there was momentary inattention here, and mere momentary inattention is not enough to justify a conviction under this section. ” [ 12 ] The conviction of careless driving was overturned. The defence had argued the possibility of an icy spot causing the loss of control maintaining that the driver was alert, driving at a reasonable speed and that no other explanation seemed reasonable or appropriate.

The lower court finding no evidence of ice had entered a conviction in the case. The Appeal Court found that at best, the evidence showed momentary inattention and that was not sufficient to justify a conviction. [ 13 ] Similarly in R. v. Khabra , [2003] O.J. No 1556 , Wolder J on appeal also overturned a conviction. Khabra asserted that braking when a bird flew in front of him caused the tractor to overturn. The Court said if an explanation for the accident is given, whether it is rational or not, it must be accepted relying on R. v. Oktem , January 30, 1992 per Dnieper.

In paragraph 6, the Court said the Justice had a duty to accept the explanation and give it the weight it deserved based on all of the evidence heard. The Court relying on R. v. Namink opined in the absence of technical evidence, the Court could not have concluded that it was speed as opposed to the offered explanation which had caused the vehicle to roll over. [ 14 ] In the case before me, Officer Simpson, the officer who attended the collision scene, investigated and issued the violation ticket before me, was the disputant’s supervisor at the time.

The conversation between the disputant and his supervisor was excluded from evidence following a voir dire . The disputant testified that the conversation was not voluntary as had he refrained from answering the questions asked at the scene by his supervisor, he could have faced a code of conduct investigation. [ 15 ] On the evidence heard in Court, there is no evidence that Brisson was speeding. There is evidence from Smith, the driver ahead of Brisson that all vehicles had stopped for the red light. Brisson also testified to stopping in conformity to the red light in heavy traffic conditions.

Despite being on his police radio to alert the detachment as to the arrest, he showed an awareness of the prevailing road conditions that is, of the lights changing to green, and of the vehicle ahead starting to move. He told the Court that at that time, as he attempted to put the receiver back in its holster, the arrested individual occupying the back of the police cruiser yelled at him challenging his arrest. [ 16 ] Brisson in his attempt to clip the radio receiver in its holster explained he had to look down momentarily to detect the holster to do that.

When he looked up, he saw the brake lights of the car ahead, and said despite braking, was unable to stop hitting it lightly. He was not challenged on his assertion of a momentary looking down or a light striking of the vehicle ahead causing minor damage. Brisson spoke in a forthright fashion.

Despite his raising in direct evidence the prisoner’s yelling at him, he did not embellish that evidence maintaining simply during cross-examination he could not say if he had been distracted by that yelling from the back of the cruiser. [ 17 ] Smith, who was ahead of Brisson, in the traffic, also confirmed in his testimony traffic ahead moved eastbound. He said that the two stopped vehicles ahead of him had moved, when the light changed, but when he reached the intersection where he wished to make a right turn, he had to stop to give way to a crossing pedestrian.

Crown led no evidence nor cross-examined the disputant on his proximity to the vehicle ahead as he proceeded to follow, the speed limit at the location, the disputant’s speed at the time or traffic or pedestrian volume at the location at the material time.

There was some evidence of damage to the rear tail gate area of the Smith vehicle and the front passenger side area of the police cruiser. [ 18 ] The evidence is that the traffic was already proceeding across the intersection following the lights changing to green, with two cars ahead having proceeded across the intersection, when the third, the Smith vehicle stopped for a crossing pedestrian.

Brisson’s testimony of the prisoner’s yelling in the back of the police vehicle when he was momentarily looking down to replace the police radio is indicative of a momentary lack of attention on his part to look ahead just then. Put another way, you could say the replacing of the receiver at the time was perhaps a lapse in judgment. At an objective level having regard to the fluidity of the circumstances, it is difficult to envisage whether he could have anticipated the moving turning vehicle ahead stopping just at the same time as he replaced the receiver and have someone also yelling at him then.

The use of electronic device by police is not prohibited under the BC Motor Vehicle Act while carrying out their duties of functions. (Section 214.3 MVA ) with the legislation specifically providing for such an exception. [ 19 ] In all of the circumstances of this case before me, the mere inadvertent negligence or error of judgment by the officer in replacing the police radio does not satisfy the burden of proof Crown bears of proving the offence beyond a reasonable doubt that there was here a marked departure from the standard of a reasonable prudent driver in the driving such that the disputant drove the police cruiser without reasonable consideration for others. [ 20 ] Even if I have erred in finding that there was no breach of duty, additionally and further, it cannot, but be emphasised, that in summarising the principles applicable in cases of this nature, Durno J in the Ontario Superior Court of Justice case of R. v.

Kinch , [2004] O.J. 486 , re-iterated that even where the conduct was of such a nature that it could be considered a breach of duty to the public, a further step must be taken, and there can only be a conviction if the conduct was deserving of punishment . (my emphasis). A breach of duty and conduct deserving of punishment are not alternative considerations but are both pre-requisites to a conviction. This is in line with the other cases such as Beauchamp and Wilson referenced before.

[ 21 ] I am unable to find on the facts that he should be punished in all of the circumstances here or that he conducted himself in a manner which bespeaks of conduct deserving punishment. __________________ S. Joseph-Tiwary