R. v. Jackson, 2019 BCPC 203

Citation: R. v. Jackson 2019 BCPC 203 Date: 20190826 File No: AJ06096425 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic) REGINA v. CORINNE MARLA JACKSON REASONS FOR JUDGMENT OF JUDICIAL JUSTICE BURGESS Appearing for the Crown: Cst. Neid Appearing on her own behalf: C. M. Jackson Place of Hearing: Kelowna , B.C. Date of Hearing: July 5, 2019 Date of Judgment: August 26, 2019

[ 1 ] Corinne Marla Jackson (Ms. Jackson) is before the court on a single count Violation Ticket AJ06096425, which is an allegation of “Drive Without Due Care,” contrary to section 144(1) (

a) of the Motor Vehicle Act RSBC 1996

chapter 318 . [ 2 ] The hearing took place on July 5, 2019 and I reserved my decision to review the law. [ 3 ] Most of the facts are not in dispute save and except for one point. [ 4 ] On November 7, 2018, Ms. Jackson was driving a vehicle westbound on Highway 33 in Kelowna, British Columbia. She had a bowl in her left hand and chop sticks in her right hand. She was actively eating using the chop sticks. [ 5 ] Where the Crown and Ms. Jackson’s evidence differs is whether or not Ms. Jackson had a hand on the steering wheel, with the Crown’s evidence being that she had no hands on the steering wheel and Ms.

Jackson’s evidence being that the thumb and index finger of her left hand were holding the bowl and the remaining three fingers were on the steering wheel. [ 6 ] There were two witnesses on behalf of the Crown, Cst. Neid and Cst. Yakonowsky. Ms. Jackson testified on her own behalf. [ 7 ] On November 2, 2018, the two officers were involved in a call operation. Cst. Neid was the caller and Cst. Yakonowsky was part of the pick up crew. [ 8 ] At 14:22, Cst. Neid was in an elevated location adjacent to the two westbound lanes of Highway 33. He observed the vehicle that was being driven by Ms. Jackson.

He observed the female driver had something in her hands as her vehicle passed by his location. Cst. Neid observed that the driver had a bowl in her left hand in a position 3/4 to the face from the steering wheel. There were chop sticks in the driver’s right hand which she was using to put food into her mouth. Cst. Neid observed that there were no hands on the steering wheel. Cst Neid indicated that he had a five to six second observation time of these events. [ 9 ] On cross examination, Cst. Neid described the action of the chop sticks as “shovelling” the food. Cst.

Neid candidly stated on cross examination that if he had seen a hand on the steering wheel, he would not have called the matter to the pick up crew. [ 10 ] On cross examination, Cst. Neid estimated the speed of the Jackson vehicle as 60 km/h. [ 11 ] Cst. Neid called the infraction to the pick up crew and Cst. Yakonowsky stopped the Jackson vehicle. Cst. Yakonowsky observed a white bowl with a pair of chopsticks on the passenger seat. He issued the Violation Ticket. Ms. Jackson told Cst. Yakonowsky that she had one hand on the wheel with a bowl in that hand and chopsticks in the other hand. [ 12 ] Ms.

Jackson’s evidence was similar to Cst. Neid’s, save and except as to what she was doing with her left hand. Ms. Jackson’s evidence was that she was not speeding, stating that she was “…perhaps no more than 10 km/h over.” I pause to note here that Ms. Jackson applied a common misconception to her evidence about her speed, that being that a speed 10 km/h over the speed limit is not speeding. The law is that 1 km/h over the speed limit is speeding. Despite her evidence that she was not speeding, Ms. Jackson was speeding. [ 13 ] Ms.

Jackson said she had one hand on the wheel and that she was eating with the other hand while driving. She said she gave due care and attention to her driving. [ 14 ] On cross examination, Ms. Jackson indicated that with her left hand she held the bowl with her thumb and index finger and had three fingers on the steering wheel. She had chopsticks in her right hand and reached across with her right hand to put the food in her mouth. She would look down for a split second but was not looking down for any length of time. [ 15 ] Ms.

Jackson’s argument included quoting from a “Kelowna Now” story and RCMP tweets that discussed eating while driving could result in a Violation Ticket if both hands were off the wheel. She submitted that she had both hands on the wheel. This submission is contradictory to her evidence which was that she had one hand on the wheel with three fingers of her left hand holding the wheel and her index finger and thumb holding a bowl of spinach and she had chop sticks in her right hand. [ 16 ] The Crown’s submission is that Ms. Jackson had no hands on the wheel and was actively eating while driving and that Ms.

Jackson’s evidence and her demonstration of how she was driving was 1/2 a hand on the wheel. The Crown’s argument is Ms. Jackson’s actions put her in a position that she could not have been able to react appropriately. Crown quoted from two cases, R. v. Goldade and R. v. Wheedon, outlining that the driving of Ms. Jackson departed from the accustomed sober behaviour of a reasonable person, given that there was city traffic, Ms. Jackson was speeding and had no hands or one hand on the wheel while holding a bowl and actively eating. [ 17 ] Regarding the difference in evidence between Cst. Neid and Ms.

Jackson as to whether she had no hands or part of a hand in contact with the steering wheel, I prefer the evidence of Cst. Neid over that of Ms. Jackson. The officer was in an elevated location with a view of the Jackson vehicle as it went be his location. He was clear and precise in his evidence regarding his observations of Ms. Jackson. Cst. Neid had a five to six second period of observation of Ms. Jackson as she drove to and by his location. Cst. Neid was candid in his cross examination in saying that he would not have had Ms.

Jackson stopped by the pickup crew if he had seen one of her hands on the steering wheel. In contrast, Ms. Jackson gave no evidence that she even knew of the presence of Cst. Neid as she drove by his location. Her evidence regarding her actions with her hands and her submissions were contradictory. [ 18 ] The Motor Vehicle Act RSBC 1996

chapter 318 section 144 (1) (

a) states: 144

(1) A person must not drive a motor vehicle on a highway without due care and attention [ 19 ] The Motor Vehicle Act

section 144 is subtitled, “Careless Driving.” The courts have reviewed the Motor Vehicle Act

section 144 in a number of cases. In R. v. Malcom 2015 BCSC 306 commencing at paragraph 21 , the court states: [21] The true test of driving without reasonable consideration was articulated by the Honourable Judge Hoy in R. v. Joe [1994] B.C.J.

No. 2017. There, the learned judge said: 20. The test, in my view, is contained in the words of the

section itself. Thus, is the driving done without consideration of the conditionsand use of the roadway by others, in such circumstances where a reasonable prudent driver ought to have been aware of the potentialdangers posed or created? [22] This test does not require that an accused motorist be liable for one or more violations of the Act.

It simply requires that theevidence show that given the circumstances of the time and place, the accused, as a reasonably prudent driver, ought to have been awarethat his driving exposed other users of the highway to potential danger. [23] This is an objective test… [20] The courts have long held that this subsection is a strict liability offence. [21] In R. v. Goldade 2009 BCPC 62 , [2009] B.C.J. No. 414 the court states at paragraphs 18 – 19: [18] The cases also reveal that s. 144 of the Motor Vehicle Act does not demand that drivers in British Columbia satisfy a standard ofperfection.

It does require, however, that they drive in a manner that is objectively reasonable, having regard to all the circumstances. Rv. Chisholm, [2008] B.C.J. No. 1414. [19] If the Crown establishes that the manner of driving departs from the accustomed sober behavior of a reasonable man, it is then opento the accused to avoid liability by proving he took all reasonable care. Again, this is viewed objectively by what a reasonable manwould have done in the circumstances. [22] Cst. Neid in his submissions indicated that he was unable to locate any case law specific to a person eating while driving.

Ilikewise did not find any British Columbia cases dealing specifically with a person eating while driving. [23] There are principles set out in R. v. Martens – Excerpt Reason for Judgment, 2004 BCPC 553 which are applicable to this case.In R. v. Martens, the Disputant was involved in a collision. It was the Disputant’s evidence that he had his dog with him in his vehicle ashe was driving. The court reviewed Mr. Marten’s evidence at paragraph 18 as follows: [18] As Mr. Martens was approaching the curve in the road, all of a sudden his dog was in front of him.

He pushed the dog back asquickly as he could and when he looked up he had crossed over the centre line. The other vehicle was there. Mr. Martens tried to pull hisvehicle back but he had no time and the tragic accident occurred. [24] The court convicted the Disputant of driving without due care and attention. In coming to that conclusion, the court stated: [34] It is when a dog is in the cab of a vehicle and the dog can, as Mr.

Martens' dog did, cause the driver to become inattentive to hisdriving, albeit only momentarily, that the offence of without due care and attention is established because of a risk introduced into thedriving conduct of Mr. Martens. … [36] Mr. Martens, by having the dog in the vehicle, has assumed a risk. Any inattention that results from the presence of the dog in thevehicle is an assumption of risk by the driver. Mr. Martens did not have to drive his vehicle with that risk present.

He acceptedresponsibility for any risk created by permitting the animal to be in the vehicle. [25] The question for the court to decide in this case is whether the driving of Ms. Jackson, that is, holding a bowl in her left hand,holding chopsticks in the right hand and actively eating while speeding on a four lane road in a city, constitutes driving without due careand attention. [26] As set out in R. v. Goldade Ms.

Jackson will not be held to a driving standard of perfection but to a standard that is reasonablyobjective, that being that a reasonable and prudent person would be aware of the dangers posed to other users of the road, including otherdrivers, pedestrians and cyclists in the circumstances. [27] Based on the quoted cases, the standard of driving that the Crown must prove in this case is that Ms.

Jackson’s driving departedfrom that of a reasonable and prudent person in the circumstances or she ought to have been aware her driving exposed others to dangerin the circumstances. [28] Considering the risk principle set out in R. v. Martens, Ms. Jackson, by holding a bowl in one hand and chop sticks in the otherand actively eating while speeding assumed a risk. The risk was that Ms.

Jackson was betting with her own safety and life and the safetyand lives of other users or potential users of the road as she drove her vehicle while both of her hands were holding foreign objects notrelated to drving and eating at the same time. Implicit in this risk was the chance that Ms. Jackson could not maintain control of hervehicle while holding a bowl and chopsticks and eating or that such an activity would make her inattentive to her driving. Ms.

Jacksonassumed a risk by her actions, a risk that she did not need to assume while driving her vehicle. [29] Driving is an activity that requires concentration, skill, attention, split second decision making, deductive reasoning of thedynamic events unfolding around the driver, and anticipation of what other users of the road are doing or may be doing. A person shouldnot be “multi-tasking” while driving. A person should not be driving while having objects in both hands. [30] Motor vehicles are large objects and travel at high speeds.

The danger and potential for mishaps are ever present while a vehicleis in motion and driving a vehicle requires the full attention of the driver. Holding a bowl in one hand and using chopsticks in the otherhand to eat while driving, even if three fingers of the hand holding the bowl were in contact with the steering wheel, is not giving one’sfull attention to driving and is a marked departure from that of a reasonable and prudent person in these circumstances.

[ 31 ] Following the line of reasoning in R. v. Joe , applying the language of section 144(1)(a), Ms. Jackson was not exercising due care of the vehicle she was driving as her hands were occupied with a bowl and chopsticks and not on the steering wheel. Further, Ms. Jackson’s full attention was not on her driving as she was actively eating which divided her attention between driving and eating. Ms. Jackson, whether she acknowledges it or not, was not giving due attention to her act of driving.

A reasonable and prudent person ought to be aware that driving with objects in both hands and eating exposed other users of the highway to potential danger. [ 32 ] I find that Crown has established that Ms. Jackson’s driving departed from that of an accustomed and sober reasonable person in these circumstances. [ 33 ] The issue now becomes whether Ms. Jackson has provided evidence that she took all reasonable care. I find that she has not provided such evidence. Ms. Jackson’s evidence was that she was “not speeding” when she was driving 10 km/h over the speed limit. Ms.

Jackson indicated that there were no improper driving actions on her behalf when she was observed by Cst. Neid and that she was able to change lanes and stop when directed to do so by Cst. Yakonowsky.

That is true, however, her actions of driving while holding a bowl in one hand, chopsticks in the other hand and actively eating was not taking reasonable care as she assumed risks by taking the chance of driving with her hands occupied by a bowl and chopsticks and actively using the chopsticks to eat instead of having her hands on the steering wheel and her full focus on the act of driving. [ 34 ] By coming to the conclusion that Ms.

Jackson was driving without due care and attention as she was driving with a bowl in her left hand and chop sticks in her right hand and actively eating, I am not finding that a person who is eating while driving is driving without due care and attention. The minimum standard of a reasonable and prudent person, as implied by the Crown, would be to have at least one full hand on the steering wheel while the vehicle being driven is in motion. The hand that is on the steering wheel should not also be holding some other object. [ 35 ] The Crown has proven its case beyond a reasonable doubt and I find Ms.

Jackson guilty of this offence. Given the egregious circumstances, I am not prepared to consider a reduction in the fine. Ms. Jackson has to October 31, 2019 to make payment. ________________________ B. Burgess Judicial Justice