R. v. Swanson Date:, 2015 BCPC 359

Citation: R. v. Swanson Date: 20151116 2015 BCPC 0359 File No: AH80921325-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA ( TRAFFIC COURT ) REGINA v. BRIAN PHILIP SWANSON REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H. W. GORDON Counsel for Crown : Cst. E. Payne Appearing on his own behalf: B. P. Swanson Place of Hearing: Victoria , B.C. Dates of Hearing: July 14 & November 3, 2015 Date of Judgment: November 16, 2015

Introduction [ 1 ] This case has an unusual twist. The events that were observed that led to the charge were by a police officer while off duty. The vehicle of the alleged offending vehicle was owned and apparently driven by a person who was at the time a police officer of a neighbouring police department, who is now a fire fighter of that municipality. This professional link infused a high level of emotional tension into the proceedings. [ 2 ] Mr. Swanson is charged as the registered owner of a vehicle that passed another vehicle on the right contrary to section 158(1) of the Motor Vehicle Act .

The charge on the violation ticket and to which Mr. Swanson pled to was section 158(2). After hearing the evidence of Cst Payne and reading

section 158 in its entirety, I concluded the alleged offence was properly described under section 158(1) and so amended the violation ticket on the authority of

section 100 of the Offence Act to a charge under that section. In my view, section 158(2) is not a charging

section but simply an annulment of the exception to the prohibition provided by section 158(1). As a result of making that amendment, I adjourned the trial to permit Mr. Swanson the opportunity to consider how he wanted to proceed as a result of it. The Charging

Section [ 3 ]

Section 158 reads: Passing on right 158

(1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except (

a) when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn, (

b) when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or (

c) on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right (

a) when the movement cannot be made safely, or (

b) by driving the vehicle off the roadway. Evidence of Cst Payne [ 4 ] Cst Payne gave the following evidence. He is an officer on the Oak Bay force. On April 30, 2014, Cst Payne was off duty and driving his personal vehicle eastbound on Cedar Hill Cross Road in Oak Bay. As he crossed Henderson Road, he noticed a blue Jeep Wrangler “riding his bumper”. It was so close he could not read the licence plate. He was driving about 50 kph. It continued this way to the intersection with Cadboro Bay Road. Cst Payne stopped and made a right turn onto Cadboro Bay Road to go southbound.

He accelerated up to approximately 50 kph. The posted speed on that portion of the road is 50 kph. The blue Jeep was “still on his bumper”. [ 5 ] This portion of Cadboro Bay Road is single lane in each direction with residential homes on the east side and the Uplands Golf Course on the west side. It is a single lane roadway divided for the first 200 – 300 metres from Cedar Hill Cross Road by a double solid yellow line which then becomes a single yellow line southward. It allows for parking along the curb.

There is no sidewalk on the west side next to the golf course and the hedge and trees lining the golf course are quite close to the curb. [ 6 ] Cst Payne said that as he neared the clubhouse on Cadboro Bay Road, he looked in his rear view mirror where moments before he had seen the Jeep and it was not there and then noticed in his peripheral vision on his right the Jeep accelerating past him driving at what he estimates to be 60 – 70 kph. He noted the licence plate number of the Jeep.

He says he momentarily lost sight of the vehicle when it rounded a slight curve and regained sight again at or near where Lansdowne Road crosses Cadboro Bay Road. He followed the Jeep to Bowker Avenue where they both turned left, followed it to Beach Drive where it turned right and that was the last he saw it.

He says at no time did he have a clear sight of the driver of the Jeep. [ 7 ] Several days later, when he returned to duty, Cst Payne ran the plate number on his police computer system and obtained the name and address of the registered owner of the Jeep. [ 8 ] On May 10, Cst Payne completed a Violation Ticket charging Mr. Swanson as the registered owner of the Jeep with 3 offences: passing on the right unsafely under section 158(2)(a), follow too closely under section 162(1) and speeding under section 146(1) of the Motor Vehicle Act . [ 9 ] He then attended at Mr.

Swanson’s residence where his wife summoned him to the front door. Cst Payne was in uniform and his Oak Bay police vehicle was in the front drive. Mr. Swanson identified himself and advised Cst Payne that he was a Saanich police officer and that they had apparently worked together on an integrated regional team. This was the first that Cst Payne became aware that Mr. Swanson was a police officer. He said in cross examination this revelation caused him to reflect on this turn of events. It apparently was at this point that Cst Payne stroked a line through counts 2 and 3 and wrote “warning” across them. Mr.

Swanson had been demanding he be handed the ticket which Cst Payne did after he struck counts 2 & 3. [ 10 ] In giving his evidence, Mr. Swanson said that during this conversation at the front door of his residence, he said he was driving

the Jeep that day, was offended by the “lecture” Cst Payne was giving him and offended as well that a fellow officer would “triple box” him, which I understand is police talk for charging him with 3 offences. Amending the Charging

Section [ 11 ] At the end of Cst Payne’s evidence in chief, Mr. Swanson made a no evidence motion on the grounds there was no evidence the vehicle passing on the right did so unsafely. This led to the discussion amongst Cst Payne, Mr. Swanson and the Court of the charge, the evidence and what

section 158 was and whether subsections (1) and (2) were separate charges or one. As a result of this discussion, I amended the charge to section 158(1) based on the evidence, under the authority of

section 100 of the Offence Act , and adjourned the trial to give Mr. Swanson an opportunity to determine where he would go from there on the amended charge. The Remainder of the Trial [ 12 ] On resumption of the trial, Mr. Swanson cross examined Cst Payne, gave evidence himself and called his wife to give evidence of what occurred at the front door at the time Cst Payne served the violation ticket. [ 13 ] Despite, from the beginning of the trial, reinforcing with Mr. Swanson that the evidence should be focused and limited to the only issue I had to decide: did the vehicle pass on the right of Cst.

Payne’s vehicle and if so, did it do so under one of the three exceptions, Mr. Swanson took up a great deal of court time with peripheral issues of Cst Payne’s evidence, including his credibility. And in saying so, I appreciate the emotional angst this ticket has created for Mr. Swanson. But I say so also because I am not going to address most of it in reaching my conclusion on the single charge of passing on the right. Analysis [ 14 ] It is evident from the testimony I heard, including Mr. Swanson’s admissions, that he was the driver of the Jeep on this occasion and that he passed Cst.

Payne’s vehicle on the right on Cadboro Bay Road between Cedar Hill Cross Road and Lansdowne Road. None of the other testimony I heard is directly relevant to the charge and what I have to decide. [ 15 ] In argument, Mr. Swanson pursued the line he was advancing from the beginning: that it was safe for him to pass Cst Payne’s vehicle on the right, given the amount of roadway between Cst Payne’s vehicle and the curb. [ 16 ] In my view, that argument misses the point.

The law does not permit passing on the right in the circumstances of this case. [ 17 ] Section 158(1) provides firstly, “the driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle.” It then provides three exceptions to that prohibition. None of those three exceptions applied in this case. And lastly, section 158(2) provides that even if one of those three exceptions applied, the driver is prohibited from passing on the right if it cannot be done safely or if it requires driving the vehicle off the roadway.

In other words, the safety of the pass only comes into play if the circumstances of the pass are one of the three exceptions set out in subsection (1). [ 18 ] The second exception permitting a pass on the right: “when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive”, requires there to be at least two marked lanes of traffic in that direction.

Section 119 defines "laned roadway" as “a roadway or the part of a roadway that is divided into 2 or more marked lanes for the movement of vehicular traffic in the same direction”. On this part of Cadboro Bay Road, there was only one lane of travel in the southbound direction. Therefore Cadboro Bay Road at this location was not a “laned roadway”. [ 19 ] So whether the roadway on that part of Cadboro Bay Road was wide enough to comfortably accommodate two vehicles proceeding southbound if there were no vehicles parked at the curb is not the issue. The Legislature has made such a maneuver illegal.

Peripheral Issue [ 20 ] Since Mr. Swanson made much during the trial attempting to attack Cst Payne’s credibility, despite his admission that he passed Cst Payne’s vehicle on the right, I want to address that matter before concluding these Reasons. [ 21 ] Firstly, I find Cst Payne to be quite credible. Everything that he said was consistent in a general sense with Mr. Swanson’s evidence. Until Mr. Swanson advised Cst Payne at the door of his residence when serving the Violation Ticket, Cst Payne did not know Mr. Swanson was a police officer.

He wrote the ticket because he viewed what he considered egregiously bad driving: tailgating and passing quickly on the right at a higher than permitted speed. And as a police officer, he was in a position to do something about it, when he returned to duty. [ 22 ] My only comment is that the driving possibly was not as egregious as Cst Payne perceived nor certainly as benign as Mr. Swanson described, the latter’s recollection possibly affected because the first time he had any occasion to have to remember what he did on April 30 was 10 days later on May 10 when Cst Payne came to serve the ticket.

Finding of Guilty [ 23 ] For the reason given above, I find Mr. Swanson as registered owner guilty of passing on the right of another vehicle on a single lane roadway contrary to section 158(1) of the Motor Vehicle Act . The fine imposed is the ticketed amount of $109.

_______________________________________ H.W. Gordon Judicial Justice