IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This case arises from what was described to me as an incident of "road rage" on November 7, 2013; beginning with a disagreement over a space in line at a drive-thru and ending with a violent assault on a vehicle.  Ms. David was charged as the registered owner of the vehicle believed to be involved in the incident and driven in a manner contrary to the Motor Vehicle Act.  She disputes that her vehicle was involved in any way.

[2]           On November 7, 2013 at about 8:30 a.m., Christopher Smith (the “Complainant”) was driving to Nanaimo from Victoria when he decided to stop for a coffee at a Tim Horton's drive through restaurant in Mill Bay, B.C.  At the time, he was driving a large Ford F250 long box extended cab pickup truck.  Because of the length of his vehicle he was not able to navigate the sharp turn into the drive through lane so he passed the restaurant and then approached it from the opposite direction so that he could negotiate the turn.

[3]           As he attempted to merge behind the two vehicles already in the drive-thru lane the Complainant noticed a third vehicle, a small car, driven by a male, try to edge into the lane ahead of him.  The Complainant lowered his window and indicated to the unknown driver of the vehicle that the spot in line was his as he had been waiting.  The other vehicle nudged his front tire but had to give way to the larger truck driven by the Complainant.  The Complainant said it was hard to tell exactly what colour the other vehicle was because it was dirty but his impression was that it was brown and possibly two-tone.  He said he thought that it was an Integra or something like that and possibly an early '90s model and that he thought it was a 2 door model.  He stated that the vehicle bumped his truck a second time from behind and the unknown driver gestured angrily toward him.  The Complainant proceeded to enter the drive-thru, purchase his coffee and returned to his driving route without exchanging any words with the unknown driver of the other vehicle.

[4]           As he continued on his route, the Complainant's vehicle was travelling in the curb lane of the Trans-Canada highway heading northbound.  As he approached the Cowichan Bay intersection with the Trans-Canada highway, the Complainant noticed a small car overtake him and then pull in front of his truck and brake suddenly.  The unknown driver of the small car repeated this sudden braking several times and then stopped directly in front of the Complainant on the highway.  The unknown driver of the small car, which the Complainant recognized as the vehicle that had bumped his truck in the drive-thru earlier, jumped out of his car with a hammer-like object in his hand and came toward the Complainant yelling and gesturing wildly. 

[5]           The Complainant described the unknown driver as a "scruffy" looking Caucasian male in his early twenties with facial hair and standing approximately 5'9" - 5'10" with a medium to slight build, possibly weighing 165 lbs.  He could not see more than that as the man wore a "hoody" jacket pulled up covering much of his head.  The unknown driver screamed, "You fucking bitch" and then began to hit the Complainant's truck with what appeared to be a 5 lb. sledge hammer or a "deadblow" hammer of the type used for automotive body work.  The unknown driver hit the Complainant's driver's side window twice; the second blow shattered the window.  The unknown driver continued to rain blows on the vehicle, denting the side of the truck, its hood and breaking the truck's front driver's side headlight.  As his vehicle was being attacked, the Complainant locked the truck's doors and stepped on the gas, using his truck to push the smaller vehicle ahead and off the road.  The Complainant, then, drove ahead up the Cowichan Bay Rd. a short distance, searched for his cell phone and dialed 911.  The unknown driver of the small car jumped back into his vehicle and reversed it off the edge of the road and accelerated after the Complainant, overtaking and passing him and carrying on up Cowichan Bay Rd.

[6]           The Complainant pursued the vehicle as he phoned 911 and reported the incident.  The 911 Operator advised him to cease pursuing the vehicle and he did.  He returned to the Liquor Plus store in the shopping mall near the intersection where the event had occurred.  When Cst. Hart of the Shawnigan Lake RCMP detachment arrived, the Complainant described the vehicle and the unknown driver to her, as I have noted above, and advised the officer that he had not noted the licence plate number of the vehicle.

[7]           Unbeknownst to the Complainant, the incident was witnessed by another driver, Dorothy Eis, who was travelling in her car behind the Complainant's truck preparing to exit off the Trans-Canada highway onto Cowichan Bay Rd. to shop at the Valley view shopping mall near the Cowichan Bay and Trans-Canada intersection.  Mrs. Eis stated that she saw a small light coloured car that she said "popped by us" and then stopped.  She saw a "tall, slender lad" jump out of the car, leaving the door open, and approach the truck with something in his hand and then proceed to "beat" and "smash" the truck.  She thought he might have a "hoody" pulled up - he was all in dark clothing and he was moving very quickly.  He was hitting the truck very hard with the object in his hands.  As the truck drove away, pushing the small car out of the road, she witnessed the young man run to his car and reverse it off the edge of the road and, then, follow the truck.

[8]           Ms. Eis stated that she had a clear view of the car as it reversed toward her vehicle and she made a mental note of the licence plate number.  She did not observe any damage to the rear of the car and noted that it had reversed off the edge of the road with ease.  Mrs. Eis said she made a mental note to remember the plate number as she drove off the highway and into the Valley view mall parking lot and stopped.  As soon as she stopped her car she wrote the licence plate number down on the back of a receipt and placed the paper in her coffee cup holder of the car.  She kept the receipt there until she saw an ad in the paper on November 14, 2013 in which the RCMP asked for any witnesses to the incident to contact police.  Mrs. Eis retrieved the paper slip from her car and called the police and relayed to Cst. Hart the licence plate number of the vehicle that she had observed fleeing the area after the incident.  She testified that she subsequently burned the paper as she did not think it was needed any longer as she believing that she had "done my job" and thought that nothing more would be required of her. 

[9]           Under cross-examination, Mrs. Eis repeated that she had memorized the plate number and then drove into the mall and wrote it down immediately.  She repeated her description of the car as a small "sedan" type of car, light in colour.  She stated that while this incident was disturbing to her, it was not the first such incident she had witnessed and she noted that she had the opportunity to memorize a licence plate number once before so this was not her first time doing so.

[10]        Cst. Raelyn Hart of the Shawnigan Lake RCMP detachment was the officer on general duty on November 7, 2013 when the Complainant called in a report of a "road rage" incident that had commenced at the Tim Horton's drive-thru in Mill Bay and continued at the intersection of Cowichan Bay Rd. and the Trans-Canada Highway.  Cst. Hart testified that her detachment is responsible for both the Mill Bay area and the Cobble Hill area of British Columbia; the first, Mill Bay being the location of the Tim Horton's incident and the second, Cobble Hill being the location of the incident on the Trans-Canada highway near the Valley view Mall.  Cst Hart testified that she met the Complainant at the Liquor Plus Store in the shopping mall where he was cleaning broken glass out of his vehicle.  After taking a statement from the Complainant and photographing the damage to his vehicle she returned to the detachment.  Cst. Hart prepared a media release in the hopes of obtaining a witness to the incident.

[11]        Cst. Hart confirmed that Mrs. Eis spoke with her on November 7, 2013 in response to the RCMP media release seeking witnesses to the incidents that had occurred on November 7, 2013.  Mrs. Eis stated that she had witnessed the incident and read Cst. Hart the licence plate number from the piece of paper which she had retrieved from her car.  Cst. Hart testified that the licence plate number relayed to her by Mrs. Eis was 269 NTN.  Mrs. Eis attended the detachment and gave an audio-recorded statement on November 23, 2013.  Neither her statement nor that of Mr. Smith was entered into evidence.

[12]        On November 23, 2013, Cst. Hart queried licence plate number 269 NTN in the computerized police information system ("CPIC") and learned that the licence plate was associated with a vehicle registered to Crystalina David with an address of 2190 Benko Rd. in Mill Bay, BC.  Cst Hart attempted to contact Ms. David on 7 occasions commencing with November 23, 2013 and ending on March 1, 2014.  Cst. Hart testified that she attended the Benko Rd. residence on at least 5 occasions and telephoned Ms. David's cell phone twice, leaving voice mail messages for her each time in which she asked Ms. David to return her call.  On each occasion, Cst. Hart either left a business card or left a message for Ms. David with her mother indicating that the police were investigating an incident and asking her to call the number provided.  Ms. David did not contact Cst. Hart or anyone else at the detachment at any time.

[13]        On May 22, 2014, Sgt. Kerr (Cpl. Kerr at the time) was stopped at a Stop sign at the intersection of Benko Rd. and Butterfield Rd. in Mill Bay when he observed a Nissan Sentra driven by a young woman proceed through the intersection.  He recognized the car as being associated with an address on Benko Rd. which he knew to be the address of Ms. David.  He knew that Cst. Hart was attempting to contact Ms. David because he had been the watch supervisor on November 7, 2013 when Cst. Hart attended the incident in Cobble Hill.  Sgt. Kerr testified that he followed the vehicle and pulled it over.  He queried the licence plate on the Nissan and spoke to the driver who was identified by her driver's licence as Crystalina David.  The vehicle was registered to Ms. David's mother.

[14]        Sgt. Kerr testified that he explained to Ms. David that Cst. Hart had been making efforts to speak with her regarding a motor vehicle incident the previous November.  Ms. David acknowledged that she owned an Integra but stated that she knew nothing of the incident and had not loaned the car to anyone and that no one drove the car but herself.

[15]        Sgt. Kerr said that he then issued Ms. David a three-count violation ticket, AH75842982, as the registered owner of the vehicle believed to have been involved in the road rage incidents of November 7, 2013.  On the Violation Ticket, he noted the vehicle as a '91blue Integra with a licence plate number of 269 NTA.  He testified that he would have taken the plate number from the police file as he could not locate Cst. Hart to speak with her as the investigating officer who had prepared the incident file.  He could not say if he had copied the number correctly from the file.

[16]        Sgt. Kerr explained that he wrote the ticket for 1) driving without due care and attention, contrary to s. 141(1)(a) related to the drive-thru and pulling in front of the truck; 2) failing to leave sufficient distance contrary to s. 162(3) related to the drive-thru incident at the Tim Horton's and, 3) failing to remain at the scene of an accident contrary to s. 68(1) of the Motor Vehicle Act  related to both incidents.  Sgt. Kerr testified that he noted that Ms. David was recording his conversation with her on her cellular phone which she had in her lap.

[17]        Ms. David testified on her own behalf.  Ms. David is 24 years old now; she was 22 years old at the time of the incidents in question.  She stated that at the time she was the registered owner of a blue 1991 Integra, 2 door sedan.  Her counsel produced the ICBC issued Motor Vehicle Registration for that vehicle with a licence plate number 269 NTN.

[18]        Ms. David testified that her parents had helped her buy the vehicle for a high school graduation present.  She described it as a "medium blue" not a dark blue and insisted that she kept it "clean".  On cross-examination she acknowledged that it might get dirty from time to time in winter.  She stated that the vehicle was always the original factory blue colour.

[19]        In her evidence on direct, she testified definitively that no one else ever drove the vehicle and that she did not lend it to anyone and never had the keys out of her possession.  She noted that at the time of the alleged road rage incidents, she had a boyfriend who she described only as "clean shaven" with short hair.  She said that he did not wear hoodies.  She testified that her boyfriend did not drive her car.  Under cross-examination she conceded that her parents might have driven her car on occasion, that she could not be certain where her keys were on November 7, 2013 and could not say for certain that no one else drove the car on that day.

[20]        Under cross-examination, Ms. David described her boyfriend as not very tall, probably about her height (5’ 6”) and she put his weight at possibly 135-140 lbs.  When challenged, she conceded that he may own a few "hoodies".  She acknowledged that one of the numbers that Cst. Hart had been calling in an attempt to reach her was her personal cell phone number but she denied receiving any of the voice mail messages that the Constable had left for her.  She speculated that they might have been deleted by her phone system.  She also testified that her mother did not tell her that the police had been to the house and had wanted to speak with her about the road rage incidents of November 7, 2013 until after she told them that she had received a ticket from Sgt. Kerr related to the incidents. 

[21]        There are two issues before me.  First, I must determine whether the Crown has proven beyond a reasonable doubt that the 1991 Acura Integra registered to Ms. David was the motor vehicle involved in the two incidents of November 7, 2013 such that she would be responsible for any contraventions of the Motor Vehicle Act caused by that vehicle.  Second, if I am satisfied that the vehicle involved in the incidents was that of Ms. David, I must, then, determine whether the Crown has proven beyond a reasonable doubt that the vehicle was driven in a manner contrary to ss. 144(1)(a); 162(3) and 68(1) of the Motor Vehicle Act.   

[22]        This case is somewhat unusual in that Ms. David is charged as the registered owner of the vehicle involved in two related road rage incidents that occurred on November 7, 2013.  The Crown does not allege that she was the driver of the vehicle at the time of the incident leading to the allegations on the violation ticket.

[23]        A witness to the incident provided the licence plate number for the vehicle involved and both the witness and the Complainant provided descriptions of the vehicle and its driver.  Ms. David was charged as the result of an investigation which led Sgt. Kerr, as the charging officer, to conclude that she was the registered owner of a vehicle similar to the description provided and bearing the exact licence plate number provided by an eye witness.

[24]        I have no hesitation in accepting the evidence of the Complainant who gave his evidence in a very straightforward and forthright manner.  He provided a fairly detailed description of the vehicle involved in the incidents as an "older", "small" and, "foreign" car which he believed to be an "early 1990s" "Integra or Integra-like car".  He testified that the car was "dirty", "possibly brown", and that it was likely a "two door" model.  He acknowledged saying in his police statement that he thought it might be a two-tone vehicle.  He described the driver as a "scruffy looking Caucasian male" who was definitely in his early twenties, with a "slight" to "medium" build, wearing a hoody and with facial hair.  His best guess was that the man was 5’9” - 5'10" and might weigh 165 lbs.

[25]        Similarly, Mrs. Eis, the eyewitness to the road rage incident at the intersection of Cowichan Bay Rd. and the Trans-Canada Highway provided her testimony in a clear and concise manner.  She readily acknowledged that she did not know one type of car from another and could only describe the car in general terms such as "small", "light in colour" possibly "brown" or "beige" which she said was a version of "brown" and a "sedan type".  She also was clear that she could only provide a general description of the driver who she said was a "tall, slender lad".  She recalled how she took pains to record the licence plate number of the vehicle involved in the incident.  She was unshaken in cross-examination.  Mrs. Eis clearly felt that it was her duty to record the licence plate and provide her evidence to the police.  I accept that she did so diligently and I have no reason to question the accuracy of her recording of the plate.

[26]        I have more difficulty in accepting the testimony of Ms. David.  She did not come across as open and honest but rather as defensive and rehearsed.  I simply did not find her believable.  Her testimony on direct and under cross-examination was inconsistent.  By way of example only, she testified on direct that no one drove her 1991 Integra car, but herself.  Under cross-examination she conceded that her parents drove it on occasion.  By way of further example, she testified that the keys were never out of her possession and then, subsequently, testified that she could not say where her keys were on November 7, 2013 and that her parents would have access to the keys as she lived with them.  She acknowledged under cross-examination that she could not say whether her parents or someone else drove the car on the day in question. 

[27]        I also note that Ms. David testified in direct that she acquired the car when her parents bought the car for her as a graduation present and that she owned the car in 1991, when she would have been approximately 22 years of age, i.e. approximately 4 years after the age of graduation for most youth.  Under cross-examination when asked how long she owned the car, she hesitated for a considerable time before stating that she owned the car for less than one year in total before she sold it.

[28]        Further, I found Ms. David's assertions under cross-examination that she did not receive any of the business cards or voice mail messages left for her by Cst Hart, nor did her mother tell her at any time that Cst. Hart had been to the house looking for her, defies credibility.  As a result, to the extent that there are inconsistencies in the evidence, I prefer the evidence of the Complainant and the eye witness over the testimony of Ms. David.

[29]        Counsel for Ms. David points to the disparity in colour identification for the vehicle involved and the licence plate number noted on the Violation Ticket by then Cpl. Kerr as 269 NTA rather than 269 NTN as establishing reasonable doubt as to whether the vehicle involved in the road rage incidents was Ms. David's.  I do not agree.  

[30]        Based on the evidence which I accept, I am satisfied that the vehicle involved in the two road-rage related incidents on November 7, 2013 was an early 1990s, Integra, 2 door sedan, bearing licence plate 269 NTN which was sufficiently dirty to make colour identification difficult.  I am not satisfied as to the colour of the vehicle involved in the incident but I do not find that fatal to the Crown's case given the evidence which I do accept.

[31]        I am satisfied that the vehicle was driven by a slight to medium build Caucasian male in his early 20s who stood approximately 5’9”.  I am also satisfied that Ms. David's boyfriend matches the general description of the driver of the vehicle on November 7, 2013 although I need not determine the identity of the driver for the purposes of this case.

[32]        I am further satisfied that the licence plate number observed and recorded by Mrs. Eis and conveyed by her to Cst. Hart was 269 NTN.  I accept the Crown's submission that that Sgt. Kerr erred when he copied the plate number from the police file onto the violation ticket as “269 NTA”; an error that could have been corrected had the Crown applied to amend the Violation Ticket based on the evidence in the police file and the testimony of Cst Hart.  I do not find the recording error fatal to the Crown's case.

[33]        In summary, I am satisfied that the vehicle involved in the two road rage related incidents of November 7, 2013 was a 1991 Acura Integra bearing licence plate number 269 NTN and that the Disputant, Crystalina David was the registered owner of that vehicle.

[34]        Further, I find as a fact that Ms. David's vehicle attempted to cut the Complainant's vehicle off in line and bumped his truck twice while entering the drive-thru lane at the Tim Horton's restaurant in Mill Bay, British Columbia, and that same vehicle, subsequently, cut the Complainant off in traffic, braked suddenly and repeatedly in front of him and, then, stopped suddenly on the highway causing the Complainant and Ms. Eis, the eyewitness, to stop their vehicles on the Trans-Canada highway at the intersection with Cowichan Bay Road in British Columbia.

[35]        I also find as a fact that after the driver of Ms. David's vehicle attacked Mr. Smith's vehicle causing significant damage to the vehicle, that the driver fled the scene in Ms. David's vehicle. 

[36]        Neither counsel for the Disputant nor Cst. Hart acting on behalf of the Crown made any submissions with respect to the interpretation of the sections of the Motor Vehicle Act which Ms. David is charged with having contravened on Violation Ticket AH75842982.

[37]        Section 83 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 provides for the liability of an owner of a motor vehicle as follows:

[38]        The Act provides for a defence to an allegation of breach of s. 83(2) in certain circumstances:

[39]        Ms. David's counsel did not allege, and there is no evidence before me to support a finding that Ms. David's car had been stolen or was otherwise in the possession of someone who was not entrusted with it.  Neither is there any evidence before me to establish that Ms. David exercised reasonable care and diligence to ensure that no unauthorized person had possession of her vehicle.  Accordingly, the defences provided for under s. 83(3) are not available to her.  

[40]        Ms. David relies on the bald assertion that the vehicle involved could not have been hers for the reasons previously stated.  I disagree with her.

[41]        I have already found that Ms. David is the owner of the motor vehicle that was involved in two "road rage" incidents described earlier in this judgment; the first on a side street in Mill Bay leading into a drive-thru restaurant and the second on the Trans-Canada Highway where it intersects Cowichan Bay Rd. in the Cobble Hill area of the province.

[42]        I will address each of the counts on the Violation Ticket in the order in which they appear in the Motor Vehicle Act.

[43]        Section 68 of the Motor Vehicle Act, supra deals with the responsibility of a driver or operator or person in charge of a vehicle when there is an accident.

[44]        The evidence clearly establishes to my satisfaction that Ms. David's vehicle was involved in an "accident" as the term is used in the Motor Vehicle Act, (although I find that the incidents were both intentional in nature), and that she is responsible as the registered owner for the fact that, on November 7, 2013, the male driver left the scene of the first accident in Mill Bay in her vehicle and then left, again, the scene of the second accident in Cobble Hill, in her vehicle, and failed to return to the scene.  As a result, I find her guilty as the registered owner of Count 3 on the Violation Ticket for contravening s. 68(1) of the Motor Vehicle Act.

[45]        Section 144 of the Motor Vehicle Act prohibits driving in a careless manner.

[46]        I have no hesitation in finding that the driver of Ms. David's vehicle drove without due care and attention on November 7, 2013 when he rammed the Complainant's vehicle from behind in the drive-thru lane at the Tim Horton's restaurant in Mill Bay.  I further find that even if the driver had not been driving without due care and attention in the first instance, he most certainly was driving without any regard for others, i.e. without due care and attention, when he braked suddenly and then stopped his car in front of the Complainant's truck on the Trans-Canada highway, blocking the truck in and causing Mrs. Eis, the eye witness, to have to stop her vehicle, as well. 

[47]        I find that the driver of Ms. David's car acted with wanton disregard for others and, further acted so as to facilitate an attack on the Complainant's vehicle with a hammer in a situation where the driver would be trapped in his vehicle and unable to escape and protect himself and his property.  But for the fact that the Complainant was driving a large truck capable of pushing Ms. David's car out of the road so as to facilitate an exit route, the situation could have ended much more tragically.

[48]        As the registered owner, Ms. David is responsible for the actions of the driver of her car and accordingly, I find her guilty, as charged of Count 1 on the Violation Ticket, i.e. contravening s. 144(1)(a) of the Motor Vehicle Act.  

[49]        Section 162 of the Motor Vehicle Act prohibits a driver from following another vehicle too closely.

[50]        The Motor Vehicle Act does not define the terms "caravan" or "motorcade".  The Merriam Webster Dictionary, online version, defines the terms as follows:

[51]        The evidence before me does not establish that on November 7, 2013, Ms. David's car was in either a "group of vehicles travelling together" or a "procession of motor vehicles" such as a parade at any time.  The evidence is clear that the driver of her car was travelling alone when he tried to enter the drive-thru lane and was still travelling alone, later, when he passed the Complainant and cut him off on the Trans-Canada highway.

[52]        While I have no hesitation in finding that the entire series of events leading to the issuance of the Violation Ticket began with the driver of Ms. David's car trying to force his way into the lineup of cars at the Tim Horton's drive-thru in Mill Bay, in front of Mr. Smith's truck.  That is to say that the events that unfolded began with a fight over "space" in a line of cars but I find that s. 162(3) is not the correct section of the Motor Vehicle Act to address the driving action that was exhibited.  The driver might well have faced a charge of following too closely contrary to s. 162(1) but that is not the charge before me.

[53]        As a result, I find that the driver of Ms. David's car did not contravene s. 162(3) of the Motor Vehicle Act and, accordingly, I find Ms. David is not guilty, as the registered owner, of Count 2 relating to that alleged contravention.

[54]      Ms. David is responsible as the registered owner for the actions of the driver of her car on November 7, 2013.  With respect to Violation Ticket AH75842982 , I find as follows:

[55]        The fine for contravening s. 144(1)(a) of the Motor Vehicle Act is $368; the fine for contravening s. 68(1) of the Motor Vehicle Act is also $368.  Those fines are payable immediately.