File No. SA00198318 C A N A D A IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (BEFORE THE JUSTICE OF THE PEACE K. MORRISON) DELTA, B.C. 1997 JANUARY 22 REGINA V COLUMBIA DODGE 1967 LTD. PROCEEDINGS AT TRIAL APPEARANCES: J. WALKER for the Crown R. EVES for the Defence D. PERCY Transcriber THE COURT: The gentleman for Columbia Dodge, if you would like to come forward, and just stand there if you would, Sir. Now, I am sorry, could I -- you said Mr. Eves, did you? MR. EVES: That's right, Your Honour. That's spelled E-v-e-s, initial R., for Ron. THE COURT: Okay. And who are you in relation to Columbia Dodge? MR. EVES: I am the Fixed Operations Manager for Columbia Dodge. THE COURT: And is Columbia Dodge aware of this ticket? MR. EVES: Yes, they are. THE COURT: And aware of the proceedings today? MR. EVES: They are, Your honour. THE COURT: And they have properly instructed you to appear on their behalf and deal with the matter? MR. EVES: That's why I'm here, Your Honour. THE COURT: Okay. Then I will read the charge to you. The allegation is found on SA00198318, that Columbia Dodge 1967 Ltd., as the registered owner of the motor vehicle bearing plates REE-412, that on the 20th of September, 1996, at 1130 hours, 120th Street at 54th Avenue, at or near Delta, Province of British Columbia, was recorded as speeding, contrary to Section 151(7) of the Motor Vehicle Act, speeding against municipal sign. On behalf of the named defendant, do you understand the charge? MR. EVES: Yes, I do, Your Honour. THE COURT: And on behalf of the named defendant are you disputing the charge? MR. EVES: Yes, I am, Your Honour. THE COURT: Thank you. Have a seat. Maybe, Mr. Walker, you could just identify yourself for the record. MR. WALKER: Yes. John Walker, for the record, for the Provincial Crown. MR. EVES: I'm not sure -- MR. WALKER: And I'm wondering -- MR. EVES: -- I'm not sure what this item is. THE COURT: He is about to explain it. MR. WALKER: You can look through it if you want. I'm not sure, were there any other persons present with respect to my matters? THE COURT: Oh, I do not know. I am just trying to get a jump on this one. MR. EVES: Okay. THE COURT: Oh, I see, you want to canvass. Okay, hang on. MR. EVES: Yes. THE COURT: Okay. Your name, Sir? A VOICE: Phillips. THE COURT: You are Mr. Phillips. Thank you. Do I have Kai Chang (phonetic), Deca (phonetic) Doors Ltd., Mr. Travasinuto (phonetic), and Mr. West? Okay. THE COURT: The legislation, Mr. Eves, is somewhat unusual in that instead of having the police officers in attendance to give evidence on the witness stand, the legislation provides for that evidence to be place before the Court by way of certificate. So what Mr. Walker does is introduce a series of certificates to lay the groundwork for the charge. MR. WALKER: And these are copies of the certificates I propose to be filed, and I'll be going through and explaining them, and please follow along. MR. EVES: I will. Thank you very much. Your Honour, I will be talking a little slow today because of my orthodontic work, so if you'd be patient with me. THE COURT: Sure. MR. EVES: Thank you. MR. WALKER: This prosecution is brought pursuant to the Motor Vehicle Act, and specifically Sections 75, 76, 76.1 and 76.2. There 5 extracts of the legislation before you if you wish to have a look at it at any time. The evidence will be by way of certificate evidence only. There is no officer present to cross examine, however, if you feel that that is necessary, at the close of the Crown's case you may make application to have the officer present on another occasion for the purposes of cross examination. I'm going to be asking that the certificate of enforcement officer of photographic evidence be filed as Exhibit 1. Attached to that certificate is the photograph. And the certificate goes through the data line, that is the series of numbers and letters at the bottom of the photograph, and interprets and explains that. The first letter on the bottom of the photograph is a single letter from either A to P, and that's used as an image control character. In this case it's a D. The next four digits, a single letter followed by three numbers, is the film roll number used in the device. In this case the film roll number is A-4-8-6. The next series of numbers is the photograph frame number. In this case it's 0-2-5. The next series of numbers is the date the photograph was taken, and in this case it's 96-09-20, that is September the 20th, 1996. The next series of numbers is the time the photograph was taken, and in this case it's 11:30:48 seconds. MR. EVES: Your Honour, if I may, I have no problem with this being introduced as evidence. This particular item. THE COURT: Exhibit 1, then. EXHIBIT 1 - CERTIFICATE OF PHOTOGRAPHIC EVIDENCE MR. WALKER: Thank you. MR. EVES: Just to save time of the Court. MR. WALKER: The next certificate I'll ask to be filed is the certificate of enforcement officer, qualified operator. I'll go through this in detail, Sir, unless -- MR. EVES: I'll allow that to be admitted as well, Your Honour. THE COURT: All right. Exhibit 2. EXHIBIT 2 - CERTIFICATE OF QUALIFIED OPERATOR MR. WALKER: And the third certificate I'm going to ask to be filed is the vehicle ownership licensing information, which indicates that the photographed plate was attached to a '95 Plymouth Neon, and the registered owner of that vehicle was Columbia Dodge 1967 Ltd. Any difficulties with this being filed? MR. EVES: No, I don't have any difficulty with that, Your Honour. THE COURT: All right. Exhibit 3. EXHIBIT 3 - CERTIFICATE OF VEHICLE INFORMATION MR. WALKER: Thank you, Your Lordship. And that's the case for the Crown. THE COURT: What do you wish to do at this point, Sir? MR. EVES: I'd like to continue with my presentation of my case, Your Honour. THE COURT: Are you going to be giving evidence or simply making argument? MR. EVES: I'm just going to make a -- I'm going to start out, Your Honour, with a preamble, a very short preamble, of what -- THE COURT: Okay. I doubt that you will be giving evidence, but in an abundance of caution -- MR. EVES: I will -- THE COURT: Okay. MR. WALKER: -- I will be giving evidence and calling one witness, Your Honour. I sort of have this structured. THE COURT: You have a witness? MR. EVES: Yes, I do. THE COURT: Is the witness present? MR. EVES: Yes, the witness is present. THE COURT: Whereabouts? MR. EVES: The witness is right over there, Your Honour. THE COURT: Oh. Do you mind having a seat outside, Sir, and you will be asked to come in when your evidence is required. A VOICE: Thank you. THE COURT: Do you mind taking the Bible in your hand, Sir? MR. EVES: Could I -- with all due respect, could I just give you some indication of what my dispute is? THE COURT: Okay. The problem is -- MR. EVES: It would really help -- THE COURT: -- if any of this is evidence -- MR. EVES: -- it would really help you understand where I'm coming from in relation to disputing this allegation. THE COURT: All right. MR. EVES: Okay. To save the Court's time, Your Honour, I will now indicate what the accused is advancing as reasonable grounds for dismissing this allegation. The accused is pleading not guilty to the allegation, and is relying on the Court's interpretation of current legislation and provisions of 76.1 of the Motor Vehicle Act. And in particular 76.1(3), which addresses the issue of liability, and is continued further in (b) which states, "An owner is not liable under subsection (2) if the owner establishes that the owner exercised reasonable care and diligence in entrusting the motor vehicle to the person who was at the time of the contravention in possession of the motor vehicle." The accused -- we'll establish that the accused exercised reasonable care and diligence in entrusting the motor vehicle and should not be found guilty, and I would like to call my first witness, Your Honour, which will be Gerald Martin, to the stand. GERALD MARTIN, a witness called on behalf of the Defence being duly sworn, testifies as follows: THE COURT: Could I have your first and last name, please? A Gerald Martin. THE COURT: Usually what I do is explain that he is your witness, you can either ask him questions or you can simply have him explain what happened. But I suspect you have got a very clear structure in mind, so it is up to you. MR. EVES: Okay. I'll just proceed with my questions. They're very short, Your Honour, and I -- I intend to keep it very brief. THE COURT: Yes. EXAMINATION IN CHIEF BY MR. EVES: Q Mr. Martin, can you indicate to the Court how long you've been driving a motor vehicle? A Approximately thirty-five years. Q Can you indicate to the Court how many points you have on your driver's licence? A I have none. Q And how long have you worked for Columbia Dodge? A Sixteen years. Q In your course of employment with Columbia Dodge, do you operate various vehicles? A Yes, I do. Q Are you aware of any company policy regarding the standards of conduct when operating these vehicles? A I am. Q Have you ever received a copy of this policy from the accused, Columbia Dodge? A Yes. Q Is this something that is reviewed on an annual basis with you by your employer, the accused, Columbia Dodge? A Yes. MR. EVES: I'd like to enter an exhibit into Court, Your Honour, and present it to the witness. THE COURT: Well show it to Mr. Walker, and then it can go up to the witness. You could just show it to him. A Thank you. MR. EVES: Q Now, Mr. Martin, can you take a moment and review the exhibit and advise the Court if you've seen that document, or a document like it, before? A Yes. Q I draw your attention to a highlighted portion on the front page, a subsection that addresses how a vehicle of the accused, Columbia Dodge, is to be operated in respect to operating speed. Do you see that highlighted on the front of that document, or that exhibit? A Yes. Q For the record of these proceedings, would you read this to the Court. It's approximately one paragraph long. A That's A. Speed, "One of the major contributions to commercial and vehicle incident accident is speed too fast for conditions. Speed should always be within the posted maximum, or as most companies allow, ninety kilometres maximum. Speed should never be excess in which the consistent with the existing laws of the road, traffic, vehicle, weather or the person's conditions." MR. EVES: Q Thank you. Have you read this policy before, in time past, when provided to you by the accused? A Yes. Q Now is it fair to say that to your knowledge and belief, that the accused, Columbia Dodge, provides a copy of this policy to all of its employees on an annual basis? A Yes. Q And those would be the employees that operate vehicles? A Yes. Q Complaints regarding the operation of the accused's, Columbia Dodge, vehicles, are they monitored and followed up to the best of your knowledge? A In our Parts Department, yes. Q Has any staff been verbally reprimanded for speed related complaints to the best of your knowledge? A Yes. Q Has any staff ever been dismissed for speed related complaints? A I believe so. Q How would you be aware of this? A Oh, just through warnings through the Parts Manager. Q In respect to your driver's licence, does the accused, Columbia Dodge, require as a condition of employment that you physically produce it annually for inspection? A Yes, they do. Q I'm -- I'm now going to -- I'm going to ask you a question that may incriminate you and leave you open to prosecution. I guess my question here, Your Honour, will be will Mr. Martin have some protection under the Charter of Rights against an incriminating statement? I'll -- I'm going to ask him a question, but if he asks -- if he answers me the question, will he have some protection? THE COURT: Do you want to advise him, Mr. Walker? MR. WALKER: I don't -- I don't think it's appropriate that Crown give legal advice to either accused or witness -- MR. EVES: I'll -- MR. WALKER: -- although I can say in a general sense that a person in a witness stand on a criminal prosecution is not normally prosecuted for of fences admitted on the stand unless those involve perjury. MR. EVES: Okay. So that would be pursuant to -- I guess it would be Section 13 of the Constitution Act, something like that? MR. WALKER: Not quite, but that's okay. MR. EVES: Q Okay. I produce to you now another exhibit, if I may, a violation ticket SA00198318, with a picture of a late model Chrysler or Plymouth Neon, bearing licence number REE-412. Can you tell the Court if you were the driver of this vehicle at the time this allegation was committed? A Yes. Q And were you the holder of a valid B.C. driver's licence at that time? A Yes, I was. Q And you can tell this Court this beyond any reasonable doubt? A Yes. MR. EVES: Those are the -- that's the end of my questions for this witness, Your Honour. THE COURT: Cross? CROSS EXAMINATION BY MR. WALKER: Q Sir, you were driving this vehicle in the course of your employment? A I was. Q And you had the permission of your employer to be driving it? A I did. Q They knew you had the vehicle out on the road that day? A Yes. Q And did you ever sign anything or indicate that you would be responsible for any speeding infractions that you may incur in the course of your employment? A No. MR. WALKER: Those are my questions. THE COURT: Anything else, Mr. Eves, or can we let Mr. Martin have a seat? MR. EVES: Mr. Martin can have a seat. I'd like to give evidence, Your Honour. THE COURT: Thank you, Sir. (WITNESS EXCUSED) RON EVES, a witness called on behalf of the Defence being duly sworn, testifies as follows: THE COURT: And what would you like to tell me? EVIDENCE IN CHIEF: A I'd like to tell THE COURT that I'm the Fixed Operations Manager for the accused, Columbia Dodge. In the normal course of my employment, Your Honour, I oversee a number of established company programs, one being the Fleet Safety Program, using a manual provided by the Insurance Corporation of British Columbia. This manual here. This program comprises of several key components, namely one, being a driver screening program prior to employment, and this is achieved by having the prospective employee provide a driver's licence abstract (sic) from the -- from the Motor Licence office, prior to employment, that shows the driver's class, any applicable restrictions, and the status of his other driver's licence, and any prior contraventions to -- to the act if any. In addition, the actual licence must be produced. A copy of the company's drivers policy is produced, and particular attention is drawn to the issue of speed as it relates to the safe operation of company vehicles. The reason that this particular item is reviewed is it is most often the one that requires discussion. Vehicle accidents are investigated towards prevention in Columbia Dodge, in particular, reviewed if speed is a factor. At the time of the accident, the driver -- at the time of any accident, the driver is required to produce a new driver's licence abstract for review to assure that no significant changes have occurred in his or her driving habits by way of recorded contraventions. All company vehicles also undergo an inspection for road worthiness prior to being provided to the drivers for operating on the road. There is a company program in place by which driver's are able to take further driver education at the expense of the employer, Columbia Dodge -- or accused, Columbia Dodge. Annually, an inspection is conducted of all individuals that drive vehicles of the accused, Columbia Dodge, to assure they continue to possess both a current and valid B.C. driver 5 licence. Should someone not be able to produce a valid driver's licence, they are not allowed to operate any vehicles of the accused until one is produced. And I'd like to just show my friend over here the 1995 and 1996 garage policy renewal for the accused, that indicates the driver's name, the expiry date of the driver's -- the driver's licence number, the expiry date, and who conducted the inspection of the licence at that time. MR. WALKER: Are you asking that be filed? A Yeah, be filed as an exhibit with the Court. THE COURT: Exhibit 4. Oh, did you want me to see that -- I never did see that, what you referred to -- I think Mr. Martin has it, the policy statement, and I expect you wanted that in as Exhibit 4? A I do, yes, please. THE COURT: And then this is Exhibit 5. Any objection MR. WALKER: He also showed -- No. He also showed the violation ticket, but I don't see any need to have that filed. THE COURT: No. EXHIBIT 4 - DRIVER DEVELOPMENT POLICY STATEMENT EXHIBIT 5 - DRIVER'S LICENCE INSPECTION FORM A Is that -- is that identical? MR. WALKER: She already has that. A Okay. Fair enough. Did Mr. Martin see that other exhibit? MR. WALKER: Yes. A Or did he see this exhibit? - MR. WALKER: No. A Or does it make a difference? THE COURT: Pardon? A Which exhibit did Mr. Martin see? Did he actually view the -- this exhibit, or the other exhibit, does it matter? THE COURT: I don't think it -- A Okay. That is -- it's difficult, Your Honour, as an employer -- well, I'll just touch on one other thing that deals with the Employment Standards Act, in recovery of money, when we ask a nomination of drivers, et cetera. It's my understanding that a number of nominations are -- are filled out and are being rejected by enforcement officers for no apparent reason. A person is permitted only to attempt to complete the forms once, the -- the nomination form, and there's -- they're not opened to be challenged if -- if -- if they're met by failure. Further, it's the accused's position that the identification of violators is the responsibility of the police officers and not that of any individual person or business. And that is the end of my evidence, Your Honour. THE COURT: Cross? MR. WALKER: No. (WITNESS EXCUSED) THE COURT: Summing up? MR. WALKER: No, Your Worship. MR. EVES: I have a summation, Your Honour. THE COURT: I do not need to hear it. MR. EVES: Okay. THE COURT: Section 76.1(2) clearly spells out the liability of the owner of a motor vehicle, pursuant to 151(7), if the evidence was gathered through the use of a prescribed speed monitoring device, and clearly it was here. Sub (3) goes on to say an owner is not liable under sub (2), if the owner establishes under sub (b) that the owner exercised reasonable care and diligence in entrusting the motor vehicle to the person who was at the time of the contravention in possession of the motor vehicle. Clearly the certificates make out that the offence was committed, that the named corporate defendant was the owner of the vehicle in question. The dispute arises in whether or not the named defendant can escape liability by saying reasonable care and diligence was taken in entrusting the motor vehicle to the permitted operator. And on that issue, Mr. Eves has said that first of all there is something called Exhibit 4, Driver Development, which spells out the company expectations and requirements with respect to speed; that secondly, Mr. Martin gave evidence that in his experience if there were speed related complaints raised with respect to specific employees, those were discussed with the employees, and he said that he believed that an employee had been dismissed for that issue. Mr. Eves said that the permitted operators driver's licences are reviewed annually, that extracts are required to be reviewed, and Mr. Martin said there was an annual discussion of the company requirements as shown on Exhibit 4, Driver Development, and that capital A. Speed. My concern is that I really have never heard this argument before, in this particular set of circumstances, and it may well be that someone in another situation will be able to show me that this does not begin to meet the requirements of sub (b). But in terms of the evidence and argument before me today, I cannot see that the owner can be found liable pursuant to sub (b), and therefore the charge is dismissed. Thank you. But I should caution you, this argument on a normal R.O. charge is not usually the issue. On a normal R.O. charge the dispute is not usually, "I properly instructed the operator and I told him what to do, and I did everything I could to make sure he avoided committing the offence," et cetera, et cetera. So the frequency of this issue being heard is very, very low. I suspect it will now become a lot higher, and your situation, I suspect as well, is not going to be uncommon. I have not given it a whole lot of thought, and rattling around in the back of my head are a couple of cases that I cannot really put my fingers on right now, but which explored to some extent of what constitutes reasonable care and diligence when you entrust a motor vehicle. And it may well be that with photo radar now in effect, that this issue is going to get a lot more attention. It may well be that my decision is entirely wrong, and I certainly would not base your company policy on this decision. It is not a well reasoned, well thought out, well researched decision. It is off the cuff, based on what I heard today, period. All right? I just do not want to mislead you. I do not want you to leave here thinking that this, in every instance, is going to be sufficient. It may well not be. Okay? Thank you. 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