R. v. Brown Date:, 2016 BCPC 250

Citation: R. v. Brown Date: 20160725 2016 BCPC 0250 File No: AH92291154-1 Registry: Sidney IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. JOHN RAYMOND BROWN REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for the Crown: Sgt A. R. Rosset Appearing in person: John R. Brown Place of Hearing: Sidney , B.C. Date of Hearing: May 13, 2016 Date of Judgment: July 25, 2016

Introduction [ 1 ] This is an unusual case in a couple of aspects. The main witness for the prosecution is an off duty police officer in another jurisdiction. And the discussion between the two attending officers and the disputant, Mr. Brown, appears to have been on two different levels of understanding. [ 2 ] Mr. Brown is charged with driving without consideration for others using the highway, contrary to section 144(1)(

b) of the Motor Vehicle Act . The charge arose from a complaint phoned to the Central Saanich Police Department by Brad Myer, a constable with the Victoria Police Department. [ 3 ] Both the driver, John Brown, and the passenger, Clay Brown, who is the former’s husband and the registered owner of the vehicle, have the last name. To avoid confusion, I will refer to them as John Brown and Clay Brown. The Evidence [ 4 ] Mr. Myer gave evidence that on August 24, 2015 he was returning home from work at approximately 7 pm.

His route was northward from the Victoria Police Department near Blanshard and Caledonia to his home on the Saanich Peninsula. [ 5 ] He was riding his personal motorcycle. [ 6 ] He said he was approaching Ravine Way on highway 17 (which coincidently is opposite the Saanich Police Department). [ 7 ] The highway northbound is one way, divided from the southbound lanes by a shopping plaza containing a Save-On-Foods. [ 8 ] As it approaches Ravine Way, the highway narrows from 5 lanes to 4 lanes and then past Ravine Way narrows from 4 lanes to 2 lanes, because each outer lane becomes a turning lane, leaving the two lanes in the centre to carry on until the highway reaches the Swartz Bay Ferry Terminal. [ 9 ] Mr.

Myer says the traffic was moderate to high. It was a clear day. [ 10 ] He was riding in the far right lane as he was at Ravine Way and needed to change into the lane to his left. He did his shoulder check. [ 11 ] As he was about to make the lane change, “all of a sudden” there was a vehicle in the lane to his left, occupied by 2 male occupants, blocking his ability to make the change.

He had to move back to the far right lane. [ 12 ] He says this vehicle was also dangerously close to the vehicle in front of it. [ 13 ] He also says there were now two lanes and the traffic flow in the right lane was faster than the traffic flow in the lane to his left. He moved to the left (centre) lane. He says then he was rapidly approached by this same vehicle.

It was deliberately “pushing” from the rear. [ 14 ] He then moved to the right lane and this vehicle rapidly drove up the highway. [ 15 ] He caught up to this vehicle at Haliburton, which from my knowledge of the area, must be at least 5 kilometres further from this manoeuver. [ 16 ] At the next traffic light on this route, Sayward Road, he was in front of this vehicle. [ 17 ] After leaving that intersection, Mr. Myer was behind a mid-size white van, driving in the left lane. [ 18 ] Mr. Myer changed to the right lane.

He says the white van did not observe his lane change and started to move into his lane immediately beside him. He accelerated to get in front of the van. [ 19 ] He said shortly after he observed this vehicle with the two men approach another motorcycle just north of Tanner Road. I note that this would now be in Central Saanich. He says the vehicle did a slight nose dive to avoid hitting the motorcycle.

It then “drove around the motorcycle” (presumably by moving to the right lane) and then back across the centre lane to enter the left turn lane to access Keating Cross Road. [ 20 ] After this vehicle crossed the southbound lanes of the highway to Keating Cross Road, Mr. Myer followed four car lengths behind this vehicle. [ 21 ] Two blocks past the intersection of Oldfield Road on Keating Cross Road, the right lane becomes a right turn lane and only the left lane is a through lane.

I note that until Keating becomes one lane at Kirkpatrick Crescent, there is a raised cement sidewalk adjacent to the right lane. [ 22 ] Mr. Myer says that at this point this vehicle he was following passed a vehicle on its left by driving on the right shoulder.

[ 23 ] He followed this vehicle another couple of kilometres to West Saanich Road, and followed it approximately a block where it turned into a driveway and parked between the road and a gate. [ 24 ] He stopped, spoke to the driver and said he would like to discuss his driving habits and displayed to him his Victoria Police badge. The driver responded that he was calling the police. He noted the other gentleman was recording this interaction on his cell phone. [ 25 ] Mr. Myer called the Central Saanich police and Sgt Rosset responded. He took a verbal statement from Mr.

Myer and a description of the driver, the vehicle and licence number. He must have given Sgt Rosset the impression the observed vehicle was driving at more than 40 km/h over the speed limit (excessive speeding) which was the reason Sgt Rosset told John Brown he may have his vehicle towed. [ 26 ] Shortly, two persons exited from the house and came to the gate, one of them being John Brown, the other it came to be known was Clay Brown. [ 27 ] Clay Brown was videoing this interaction until the officers and Mr. Myer departed. [ 28 ] I watched and listened to the video in Court taken on Clay Brown’s smart phone.

The audio for John Brown and Clay Brown can be heard clearly on the Court audio recording. Because of the distance the officers and Mr. Myer were from the phone, only portions of their voices can be heard on the Court audio recording. [ 29 ] Unfortunately, Clay Brown was not able to have the video transferred to a thumb drive or DVD. [ 30 ] Sgt Rosset, having just obtained Mr. Myer’s version of events, advised John Brown that he was investigating excessive speed and driving without due care and he may tow his car away and then attempted to get John Brown’s version of events.

This start to that conversation triggered an emotional response from John Brown and to some extent from Clay Brown and a rational discussion never came about as a result. [ 31 ] Before continuing with the video evidence which was played at the conclusion of Clay Brown’s testimony, I return to the oral evidence of John Brown and then Clay Brown. [ 32 ] John Brown’s recollection of events was that the first he recall’s observing the motorcycle driven by Mr.

Myer was on highway 17 (Pat Bay Highway) between the Quadra Street and Royal Oak overpasses. [ 33 ] He said he was driving in the #1 lane (closest to the centre) and in front he observed a motorcycle close behind a white SUV (which I understand is the van referred to by Mr. Myer), also in the # 1 lane. [ 34 ] The brake lights of the SUV were going on and off. [ 35 ] He said he did not want to be any part of road rage and so moved to the right lane and passed both vehicles.

He then noted from viewing his rear view mirror that the motorcycle had moved to the right lane and then the SUV also started to move to the right lane when the motorcycle was still beside it. [ 36 ] He thought the SUV was trying to run the motorcycle off the road. [ 37 ] He then proceeded to the Keating Cross Road turnoff and proceeded to his home on West Saanich Road. [ 38 ] At his home, he noticed the motorcycle right away. Mr Myer advised him he wanted to talk to him about his driving. John Brown said he was calling the police and Mr. Myer said he was the police.

John Brown and Clay Brown headed into the house. [ 39 ] Next, Clay Brown gave evidence. His evidence of what occurred on highway 17 was essentially the same as John Brown’s evidence, with several exceptions. [ 40 ] He said the incident involving the white SUV and the motorcycle took place between Sayward Road and Keating Cross Road. This would put the incident several kilometres north of where John Brown placed it. On this point, Clay Brown’s account of the location of the SUV incident is consistent with where Mr. Myer says it occurred. [ 41 ] He also said all of this took place in the right lane.

When they concluded the interaction between the white SUV and the motorcycle was developing into a dangerous situation (the motorcycle following closely behind the SUV), they passed both in the left lane. [ 42 ] He said as they approached the SUV and the motorcycle from behind, the motorcycle was more or less a car length behind the white SUV. He also described the same touching of the brake lights by the driver of the SUV. [ 43 ] He said he witnessed the SUV moving into the lane occupied by the motorcycle initially in the mirror and then by turning around and looking. His attention was drawn to it by John Brown.

Clay Brown even wanted John Brown to turn around to see if something had happened and they could either offer assistance or provide witness information. He thought it was a road rage incident between the white SUV and the motorcycle. [ 44 ] When they got to his home, he said he saw from his bedroom window Mr. Myer and the motorcycle parked at the end of the driveway and Mr. Myer pacing back and forth talking on a cell phone. [ 45 ] They were expecting a customer and he was concerned about the customer not being able to get into the driveway because of the motorcycle blocking entry.

[ 46 ] Clay Brown wanted to get a bag from the car and thought it would be a good opportunity to ask Mr. Myer to move his motorcycle. [ 47 ] John Brown and Clay Brown then went to the gate to tell Mr. Myer to move his motorcycle from the driveway. He says he asked several times and Mr. Myer continued to pace back and forth talking on the phone and ignored Clay Brown. He says they were about 25 feet apart during this “discussion”. [ 48 ] Subsequently Sgt Rosset and an RCMP officer arrived. He says Sgt Rosset told him they were going to tow his car away.

There was more discussion about moving the motorcycle. [ 49 ] The discussion developed into an argument about survey stakes and whether the motorcycle was or was not on private property. He then said there was a half hour or more of interrogation. He felt harassed. [ 50 ] At that point, Clay Brown showed the Court the video of the entire event at the driveway. [ 51 ] Without describing in detail what occurs on the video I will describe it in

summary. The video was approximately 15 minutes in length. [ 52 ] Sgt Rosset and then Cst Duncan Ferguson of the Sidney / North Saanich RCMP were essentially trying to get John Brown’s version of events, having heard Mr.

Myer’s version. [ 53 ] Sgt Rosset having started the discussion alleging excessive speeding and a comment about towing the car away, John Brown launches into a verbal tirade about it being a homophobic attack and that he was not going to be intimidated by cops. [ 54 ] The conversation drifts in the same tone and level of emotion to moving the motorcycle and blocking the driveway and being told they would have to show survey stakes to prove it was on private property. [ 55 ] Eventually Cst Duncan Ferguson takes over the discussion, and in a manner and tone for which he deserves credit, tried unsuccessfully to obtain John Brown’s version of events.

I will say more about his below. [ 56 ] The discussion ends with Sgt Rosset passing a Violation Ticket for driving without consideration on the highway, together with his business card, to John Brown through the fence. Analysis [ 57 ] Firstly, it is obvious to me that the Browns did not have disclosure of the case against them, presumably because they did not ask for it. [ 58 ] I say this for a reason. It is apparent to me from the evidence of Clay Brown that he did not know of the allegation prior to the hearing or the evidence that Mr.

Myer gave in his testimony. [ 59 ] It is also apparent, from the discussion at the gate on August 24, 2015 and the evidence given by the Browns, particularly Clay Brown, that they thought the only interaction between the Browns and Mr Myer was somehow related to the incident between the motorcycle and the white SUV. [ 60 ] Neither mentioned any other sighting of the motorcycle between Ravine Way and their home driveway and did not respond to anything else Mr. Myer said happened, which is the basis for this charge.

I would think some form of denial would have been the spontaneous response of at least one of the Browns if they were aware of the driving Mr. Myer was alleging. [ 61 ] The entire discussion in the Browns’ driveway was on two different planes, because each side was conversing in a different context. [ 62 ] John Brown, and to a lesser extent, Clay Brown, could not understand where the allegations were coming from and saw this as some form of homophobic attack. He could not understand what possibly could justify their vehicle being towed. John Brown was in a highly emotional rant. And Mr.

Myer’s and then Sgt Rosset’s continued refusal to address the motorcycle in the driveway simply added fuel to the rant. [ 63 ] Sgt Rosset was following up on a citizen complaint of bad driving perhaps amounting to road rage between Mr. Myer and John Brown. Neither he nor Cst Ferguson were getting any form of reasoned response to their queries on what they could only conclude had occurred after hearing Mr.

Myer’s description of events, but instead were met with an emotional and totally unrelated rant. [ 64 ] Sgt Rosset’s response was to issue the ticket and let the matter sort itself out in Court. [ 65 ] The evidence of both parties is cogent in isolation. [ 66 ] In assessing the evidence of Mr. Myer, there must have been some reason he followed the Browns home and called Central Saanich police.

That lends credence to his version of events. [ 67 ] But some of his evidence causes me concern. [ 68 ] It strikes me as odd that given the speeding, and excessive speeding he says the Browns’ vehicle was doing, there were several

times he says he was ahead of their vehicle between Ravine Way and Keating Cross Road which must be a distance of a good 5 to 8kilometres. [69] Mr. Myer did not say he was doing anything other than the speed limit the entire time. That strikes me as being somewhatinconsistent. [70] And given the several times he says he passed the Browns’ vehicle, he still had not obtained a licence plate number until hefound their car in their driveway. [71] And finally, Mr.

Myer, an experienced police officer, did not make notes until several days after the incident, an incident ofwhich he was aware a ticket had been issued and for which he had told Sgt Rosset he was prepared to go to Court to give evidence. Iwould have thought he would have made those notes contemporaneously. [72] In assessing the evidence of the Browns, it is apparent to me they have no recollection of the events as described by Mr. Myerand were genuinely surprised and unaccepting of the allegations that Sgt Rosset and then Cst Ferguson advised the Browns were madeby Mr.

Myer, which were much truncated from the description of the events described in Court. [73] I draw this conclusion from observing John Brown and Clay Brown in Court and listening to their testimony and to the video ofthe driveway discussion. [74] I am conscious that the two Browns are not independent witnesses, but Clay Brown’s evidence was given without knowing ofthe evidence of Mr. Myer. Without disclosure, there could not have been the type of collaboration between the two Browns needed priorto Court to construct such a similar version of recall.

There was no suggestion in my view that the Browns were aware of anythinginvolving the motorcycle other than the interaction between it and the white van. [75] I can only conclude that if the events had been as Mr. Myer described, the Browns would have at least said something to thepolice officers at the gate to the effect they did not happen that way. [76] In deciding this case I am mindful of the principles I must apply. [77] I am guided by the principles stated by our Court of Appeal in R. v Rose, at para 23. [78] Those principles are: a. First, if you believe the accused, obviously you must acquit; b.

Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; c. Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; d. Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [79] The greatest difficulty I have with Mr.

Myer’s version of events is what strikes me as inconsistencies between the allegedactions of John Brown between Ravine Way and Keating Cross Road, particularly the excessive speeding, and how Mr. Myer, driving atlegal speeds, found himself several times ahead of the Browns’ vehicle. [80] And I am left wondering why during all of this time, he did not obtain the licence number of this vehicle. [81] That said, I cannot put aside the fact that something or some things occurred that caused him to follow the Brown vehicle to theBrowns’ home to raise the issue of bad driving. [82] Mr.

Myer’s evidence does not convince me beyond a reasonable doubt that John Brown was driving without reasonableconsideration for others on the highway. [83] Further, I am also left with reasonable doubt by the testimony of the Browns, particularly that of Clay Brown. Decision [84] I therefore acquit John Brown of the charge under section 144(1)(

b) of the Motor Vehicle Act. [85] As it was an issue raised by John Brown, I want to conclude these Reasons with the comment that there was nothing in all that Iheard that would suggest to me that Mr. Myer’s allegations were in any way homophobic. He would not have known prior to hisinteraction with the Browns at the gate of their property that they were a gay couple.

[ 86 ] I also want to recognize the very calm and professional manner Cst Ferguson dealt with the Browns at the gate when he was attempting to elicit information from them to obtain their side of the events that brought him to their driveway and was met with an unrelated rant. I say this from observing that interaction on the video taken by Clay Brown. ______________________________ Judicial Justice H.W. Gordon