R. v. C.J.S. Date:, 2017 BCPC 59

Citation: R. v. C.J.S. Date: 20170221 2017 BCPC 59 File No: AH86740406-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. C.J.S. REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H. W. GORDON Counsel for the Crown: Bruce Goddard Appearing for the Accused: Jared Faber, Articled Student Place of Hearing: Campbell River , B.C. Date of Hearing: January 25, 2017 Date of Judgment: February 21, 2017

Introduction [ 1 ] C.J.S. is a young motorcycle rider who suffered horrendous injuries in a vehicle collision not of his making. He is charged with two motor vehicle offences not directly related to the collision but based on information gathered during its investigation. [ 2 ] C.J.S. is charged with two offences under the Motor Vehicle Act : driving contrary to a restriction on his driver’s licence contrary to section 25(15) and crossing a solid double line contrary to section 155(1)(a). [ 3 ] He had obtained his class 8 learner’s licence a month prior to the events, Sunday May 31, 2015.

Class 8 is the class for operating a motorcycle. Evidence [ 4 ] On this day C.J.S. was three weeks short of his 17 th birthday and on a ride with other motorcycle enthusiasts. He was riding his 2004 Kawasaki Vulcan 500 LTD motorcycle. [ 5 ] C.J.S. worked at a local (omitted) store and one of his co-workers was a motorcycle enthusiast and suggested he accompany them on one of their weekend group day rides.

He also knew of the weekly rides from his visits to (omitted), a local motorcycle parts and accessories store, a business where he had previously purchased parts and accessories there for his dirt or motocross bike. He explained to the owner, Brian Smith, that he needed a supervisor for the ride and he said Mr. Smith agreed to fulfil that role. [ 6 ] C.J.S. said the group met at (omitted) that Sunday morning. Departure was late morning. [ 7 ] Some of the group headed to a local gas station to fuel up.

Those that did not need fuel headed off ahead of them, C.J.S. among them, agreeing to meet along the way. [ 8 ] The destination on this sunny day was Gold River, at the other end of Highway 28 from Campbell River. [ 9 ] Soon after leaving Campbell River, Highway 28 climbs for several kilometres before levelling off, near Elk Falls. Much of this distance of the incline is double lane and known locally as General Hill.

I understand from the evidence that all of this portion of Highway 28 has a posted speed limit of 80 km/h. [ 10 ] One of the restrictions on C.J.S.’s licence was that he could not drive the motorcycle at a speed exceeding 60 km/hour. [ 11 ] It is on General Hill that C.J.S. is accused of exceeding 60 km/h and therefore in breach of a condition of his class 8 “L” licence. [ 12 ] From Highway 28 there are several egresses to recreation sites and access to the lakes behind John Hart Dam.

One of these egresses is McIvor Lake Road. [ 13 ] A local resident, James Hilchey, was also heading out of Campbell River on Highway 28 in his Dodge pickup. [ 14 ] He testified a group of motorcycles had passed him on General Hill. He had set his cruise control to 80 km/h and his vehicle would have been travelling at this speed. [ 15 ] As he rounded the corner on Highway 28, about 800 metres from the McIvor Lake Road turnoff, he began to close distance on a Toyota Prius, and a following motorcycle.

The Prius and motorcycle were slowing and he was catching up to them. [ 16 ] About 200 metres from them, he noticed the Prius had its brake lights on and its right signal flashing. He assumed the Prius was turning right into McIvor Lake Road. As the Prius moved to the right partially off the travel lane just as it approached McIvor Lake Road, he also noticed the left signal light of the motorcycle and it moved to the left, accelerating. [ 17 ] Mr.

Hilchey testified the motorcycle went over the double solid line. [ 18 ] The motorcycle was the only vehicle between the Prius and his vehicle. [ 19 ] I pause here to describe the intersection of Highway 28 and McIvor Lake Road, which I draw from photos in evidence and the Forensic Collision Reconstruction Report of Cpl Jason Thompson. [ 20 ] For at least several hundred metres from McIvor Lake Road, Highway 28 is flat and straight.

Although directions on Vancouver Island can be confusing, and Gold River is on the west coast and Campbell River is on the east coast, the testimony and the Report describe Highway 28 as north/south at this location. [ 21 ] The Highway is paved with an approximate 1.3 metre paved shoulder, divided from the travel lane by a white fog line. Each travel lane of the Highway is approximately 3.6 metres wide. [ 22 ] On the approach to McIvor Lake Road from the north [the direction of travel of C.J.S.] until just beyond McIvor Lake Road, Highway 28 is divided by a solid double yellow line.

Beyond to the south, the Highway has a broken yellow line for southbound traffic, solid yellow line for northbound traffic. [ 23 ] On the opposite side of the Highway from McIvor Lake Road is the paved entrance to the Ladore Pit operated by Emcon. [ 24 ] An extract from the Forensic Collison Reconstruction Report of Cpl Thompson describes the intersection succinctly:

McIvor Lake Road to the west of the intersection was a secondary highway with a paved asphalt surface, which accessed residential properties and recreation areas along McIvor Lake. The road was approximately 22.7 metres wide at the widest point of the intersection, and 7.8 metres wide along its length. The Emcon Ladore Pit road on the east side of the intersection was a private industrial road which accessed a large gravel pit area east of the highway. The access was approximately 44.9 metres wide at the widest point where it left highway 28, and narrowed to approximately 15.3 metres farther east.

If one were to draw a perpendicular line across the Highway at the north end of the intersection, the northern edge of each intersecting road would be directly across from each other. A similar line at the south end of the intersection would have the southern edge of Ladore Pit intersecting 20 or more metres south of where the southern edge of McIvor Lake Road intersects Highway 28. Each road has a “delta” opening contiguous to Highway 28, with the Ladore Pit delta being wider than the McIvor Lake Road delta. [ 25 ] Returning to Mr.

Hilchey’s testimony, he then saw the Prius swing left across Highway 28 towards Ladore Pit. He saw the motorcyclist hit the brakes and slam into the left (driver’

s) side of the Prius. He thought himself to have been within 20 metres when this took place. [ 26 ] Thomas Morgan, the (omitted) work colleague of C.J.S., was called as a witness. He was travelling on his motorcycle behind Mr. Hilchey’s pickup. It is obvious from his testimony that the pickup blocked his view of the crucial events preceding the collision. He observed the collision but not the events leading up to the collision. [ 27 ] Both Mr. Hilchey and Mr.

Thomas described the events as happening extremely quickly. [ 28 ] Cpl Jason Thompson, a RCMP officer and Forensic Collision Reconstructionist assigned to the Integrated Collision Analysis and Reconstruction Services - Vancouver Island District, attended shortly after the collision and completed a comprehensive Forensic Collison Reconstruction Report.

He gave extensive evidence detailing the contents of his Report. [ 29 ] Although the contents of the Report do not relate directly to the two charges, there are some aspects which are useful to my analysis of whether C.J.S. crossed the double line before or after he began to take evasive action in reaction to the sudden and unexpected turn of the Prius across his direction of travel. [ 30 ] C.J.S.’s motorcycle collided with the left side of the Prius at approximately a right angle (T bone) still at significant speed approximately mid-way across the northbound lane of Highway 28. [ 31 ] The Report records an 11.4 metre solid skid mark beginning 1.2 metres east of the centre (double) line at a slight angle [6°] eastward (toward Ladore Pit road) and then 6 metres of broken skid marks to the point of contact with the Prius. [ 32 ] If one were to extend that line back northward in a straight line from the beginning of the skid mark toward the double line to the north, that distance is approximately 11 metres. [ 33 ] In other words, in 11 metres from the point the motorcycle travelled from the centre line to the beginning of the skid mark, the motorcycle moved a distance of 1.2 metres to the east from that centre line. [ 34 ] Cpl.

Thompson concludes his Report thus: There was insufficient physical evidence at the collision scene to enable the calculation of the vehicles’ pre-impact speeds. Without knowing the pre-impact speeds, it was not possible to calculate the point of perception for the rider of Vehicle One [motorcycle].

Considering a speed range from 60 km/hr to 80 km/h, the point of perception could have ranged from 25 metres to 33.33 metres prior to the braking tire mark. [ 35 ] I understand the point of perception in this context to be the point on the roadway at which C.J.S. would first perceive a situation of peril. [ 36 ] C.J.S. gave evidence.

He has a recollection of the events up to the collision but not after. [ 37 ] As would be expected, C.J.S. was thrown from his motorcycle some distance. [ 38 ] C.J.S. testified his femur was broken in 8 places and a wrist in 5 places, he suffered a damaged vertebrae and damage to his jaw, and he sustained a skull fracture with a severe concussion, remaining in a coma in hospital in Victoria for 5 or 6 days. [ 39 ] He testified that when he observed the Prius engage its right turn signal and move to the right, straddling the fog line separating the travel lane and the paved shoulder, near the intersection with McIvor Lake Road, he assumed it would be turning right onto McIvor Lake Road, he intended to move his motorcycle to the left portion of the travel lane to pass it.

He said he engaged his left turn signal to let those behind him know he intended to pass the Prius. He did not intend at that point to cross into the northbound lane. [ 40 ] He said he began to move even further left when he saw the Prius move back into the lane of travel and then the Prius made a sudden turn across the Highway. He then braked hard. Analysis [ 41 ] This takes us in the narrative to my analysis of the evidence and a finding on Count 2. [ 42 ] C.J.S. pled guilty to Count 1, driving contrary to a restriction on his licence: driving his motorcycle at a speed of greater than 60 km/h.

This charge was laid based on the statement Mr. Hilchey gave to the attending police officers that this motorcycle passed his pickup on General Hill at a speed greater than his speed of approximately 80 km/h.

[ 43 ] The remaining count of not driving to the right of a solid double line contrary to section 155(1)(

a) of the Motor Vehicle Act remains to be decided. [ 44 ] That

section reads:

(1) Despite anything in this Part, if a highway is marked with (

a) a solid double line, the driver of a vehicle must drive it to the right of the line only, [ 45 ] This charge was laid based on the statement Mr. Hilchey gave to that same officer that just before the collision; he noticed the motorcycle to have its left turn signal engaged and to cross the solid double line. [ 46 ] Mr. Hilchey and C.J.S. are the only two persons who gave evidence of the events immediately preceding the collision. As stated above, Mr. Morgan’s view of C.J.S.’s motorcycle was blocked by Mr. Hilchey’s pick up until the collision. [ 47 ] Mr. Hilchey is an objective, independent witness.

His evidence carries the greatest weight. [ 48 ] C.J.S.’s evidence potentially suffers from a recollection that immediately precedes a horrendous collision that resulted in a severe concussion. [ 49 ] That said, Mr. Hilchey’s recollection is formed during events of a few seconds that occurred very quickly ending in a horrific accident.

It strikes me that his recollection that the motorcycle crossed the solid double line intentionally might be coloured by his conclusion drawn from his observation of a left turn signal and movement left from the centre of the lane of travel or that he had not yet observed the Prius move back into the lane of travel. [ 50 ] The evidence common to both C.J.S.’s and Mr.

Hilchey’s testimony is that C.J.S. engaged his left turn sign and moved from the centre to the left of the lane of travel as he was almost at the intersection of the highway and McIvor Lake Road. [ 51 ] Given C.J.S.’s self-interest and a recollection made significantly after the event and the intervening trauma, I would give his testimony less weight than that of Mr. Hilchey. But he was credible in his testimony and able to state what was in his mind as he observed the movements of the Prius.

Further, his evidence is not inconsistent with the evidence as a whole, nor is it illogical. [ 52 ] The issue reduces to this. Did C.J.S. drive over the solid double line prior to or after the point of perception of imminent peril? [ 53 ] Based on Mr. Hilchey’s evidence and on C.J.S.’s evidence, it could be either.

C.J.S. said he recalls moving further to the left than his original intention only when he noted the Prius begin to move back into his lane of travel. [ 54 ] Any doubt that C.J.S. did cross the line before the point of perception of imminent peril is reinforced by Cpl Thompson’s Report. [ 55 ] To repeat his conclusion in the Report: Without knowing the pre-impact speeds, it was not possible to calculate the point of perception for the rider of Vehicle One [motorcycle].

Considering a speed range from 60 km/hr to 80 km/h, the point of perception could have ranged from 25 metres to 33.33 metres prior to the braking tire mark. [ 56 ] The distance between the solid double line and the beginning of the straight angular skid mark was approximately 11 metres.

Drawing from the Report that the point of perception would likely be at least twice that distance, I conclude that the motorcycle did not cross the solid double line before C.J.S. perceived that he would have to take evasive action. [ 57 ] The peril would be the Prius either moving back on to the lane of travel just as C.J.S. was about to pass it or making an abrupt turn across both lanes of the Highway to the other side. [ 58 ] Given this finding, I conclude the action of C.J.S. in crossing the solid double line was in response to his perception of a clear and imminent peril. [ 59 ] Having found C.J.S. crossed the solid double line and did so in response to his perception to a clear and imminent peril, C.J.S. raises the defence of necessity. [ 60 ] Although it may seem intuitive that his taking of this evasive action would be the natural and involuntary action of any reasonable human being, I appreciate this common law defence an easy defence to establish. [ 61 ] The leading case on the defence of necessity is R. v.

Perka, [1984] S.C.R. 232. [ 62 ] Justice Dickson gave judgment for 4 of the 5 judges. He said at page 248: It [the defence of necessity] rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable.

Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics, supra, at p. 49, “overstrains human nature and which no one could withstand”. [ 63 ] And at page 249: At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no

other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable. [64] And on onus of proof, Justice Dickson said at page 247: Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of provinga voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of the act.

Normally, voluntariness can be presumed, but if the accused places before the Court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent thatfailure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then theCrown must be prepared to meet that issue. There is no onus of proof on the accused. [65] In R. v.

Latimer, 2001 SCC 1 , [2001] 1S.C.R.3, the Court outlined the three necessary elements to establish a defenceof necessity. At para. 28, the Court said: Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril ordanger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook.

Third, there mustbe proportionality between the harm inflicted and the harm avoided. [66] Addressing these three elements, I have found that before C.J.S. crossed the solid double line, he faced imminent peril ordanger, there was no reasonable legal alternative to the course of action he undertook and the harm he sought to avoid (unsuccessfully)was significantly greater than any harm he might or did inflict. [67] C.J.S. has certainly put before the Court evidence that raises the issue of necessity and the Crown has not proven that he has notmet any one of the elements. [68] I have addressed the first element above but not previously addressed the second or third elements. [69] I find that given the speed of C.J.S.’s motorcycle at the point of perception, the close proximity to the Prius and the Prius’unexpected movement, he had no reasonable legal alternative to cross the solid double line in order to move farther from the Prius on hisright to avoid an imminent collision.

And the purpose in C.J.S. moving further to the left was to avoid a collision and at the time therewere no vehicles or other hazard in that northbound oncoming lane. [70] I conclude therefore each of those three elements have been established. The Crown has not met its onus. [71] Since offences under the Motor Vehicle Act are regulatory offences and fall into the strict liability category under the principlesset out in R. v.

Sault Ste Marie, (SCC), [1978] 2 S.C.R. 1299, I considered whether the onus of proving a defence instrict liability offences differs for proving a defence of necessity than it does for the defence of due diligence, the onus in the latter beingon the accused to establish on the balance of probabilities.. [72] My reading of Perka, and in particular the passage quoted in para. 65 above, satisfies me that the onus does differ.

The onus ison the prosecution once the issue is raised on the evidence. [73] But even if the onus is on C.J.S., I am satisfied that on a balance of probabilities and on the evidence, he has proven that hisactions were involuntary and established a defence of necessity for the reasons stated above. [74] I therefore find C.J.S. not guilty on Count 2.