IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  The accused is charged with dangerous driving contrary to s. 249(1)(a) of the Criminal Code of Canada and assaulting one Sean Powell using a knife contrary to s. 267(a) of the Criminal Code of Canada.  He has pleaded not guilty to both offences and has testified in his own defence. 

[2]           All incidents in issue occurred on Tuesday, January 27th, 2015, on the Number 1 Highway from near the north end of the Cassiar Tunnel approaching and on the Ironworkers or Second Narrows Bridge in what is popularly called "The Cut" in the District of North Vancouver and to the Lonsdale Exit off the Upper Levels Highway.

[3]           The Crown called three witnesses; namely, Sergeant Powell, Constable Bal, and Constable Koehle, who described their parts in what the Crown alleges is a road-rage incident.  I will summarize the evidence of each witness.

[4]           Sergeant Powell was, on January 27th, in plainclothes and was returning home from a 10-hour shift worked at the RCMP headquarters in Surrey which ended at 5:00 p.m.  He was a 19-and-a-half-year veteran of the Royal Canadian Mounted Police and was then driving a Silverado pickup truck equipped with hidden emergency equipment.  The traffic approaching the bridge was heavy and stop-and-go in movement.  It was just dark.  The sun had set, but the area was well-lit from all the northbound vehicles' headlights.  His visibility was at all times good.  He said at any material time it was easy to see due to the car lights.  He was driving north of the Cassiar Tunnel in the middle lane of three lanes of travel.

[5]           A green Lexus being driven by the accused came up on his right.  He was trying unlawfully, in Sergeant Powell's view, to cut into the middle lane of traffic from the inside lane.  Powell did not let him in as he felt there was no room.  The Lexus proceeded to pass the vehicle immediately ahead of Powell, driving on the paved shoulder of the road to do so, and then, after the inside lane had ended quickly, cut into his left, Powell felt almost causing an accident.

[6]           This event occurred just as the traffic in Powell's middle lane commenced moving towards the Ironworkers Bridge.  In so doing, the accused caused the vehicle ahead of Powell to brake quickly.  Powell observed the accused leaning his head out of the driver's side window of his car and appears to yell at the driver ahead just before he cut in.  He could not hear him, but saw an angry look on his face.

[7]           Powell's immediate reaction was to think to himself, "Come on, really?"  He said he was dumbstruck.  When the accused was immediately ahead of the car in front of Powell, Powell observed him hit his brakes a couple of times.  This he felt was unusual behaviour. 

[8]           The accused then moved to his left into the fast lane and shortly, due to the progression of traffic in the middle lane, Powell moved beside him to his right in the middle lane.  They were stopped side by side, Powell estimated, for five to 10 seconds.

[9]            The accused then leaned across the passenger seat of his Lexus and, with his head close to or partly out of the passenger window, spat on the left front fender of the pickup truck.  At the time, the accused was a few feet from Powell's vehicle.  Powell's reaction was again, "Come on, really?"  He had done nothing to provoke the accused, in his view.  He felt his behaviour was childish and that possibly he was angry with Powell as he had not let him in.

[10]        The traffic then started to move.  Powell slowed so as to be able to move to his left behind the accused's vehicle to take his licence plate number so he could call it in.  Immediately on his doing so, the accused hit his brakes hard and Powell, too, had to stop immediately to avoid a collision.

[11]        The accused, who was then stopped, commenced to get out of his car at between 5:51 and 5:52 p.m.  At no time had Powell honked at the accused or flashed him, including with his high beams.  Powell saw him reach down into his driver's door and pull out a knife.  This occurred as he was in the process of grabbing his police badge and immediately getting out from behind the steering wheel to be behind the driver's door to use it as a defence.

[12]        He could clearly see the knife in the accused's hand, really, the handle and some of the circular markings thereon, enough of it to tell it was a knife.  The accused held it in his left hand at the low-ready to his side.  He was about five metres from Sergeant Powell at the time.  The blade was not out. 

[13]        In his years as a police officer, he had seen knives like the one in question before.  He testified that many police officers carry a knife like the one he saw in the accused's hand and said the blade could generally deploy instantly with a flick.

[14]        The presence of the knife got Powell concerned.  He testified that but for the knife, he would in essence have let the incident go.  There was nothing between Powell and the accused, who commenced to move towards Powell, other than Powell's open driver's side door.  He took at most two to three steps.  He appeared to be very angry or agitated.  He had a look on his face which Powell said he had seen many times before when dealing with people in violent situations, as if he wanted to fight and use the knife. 

[15]        He considered the accused's action to be a threat and was at the time thinking he was going to stab him.  He was also shocked as he was not expecting to see a knife.

[16]        Powell showed the accused his badge and yelled, "Police," and he thought, as well, "Drop the knife."  On cross-examination, Powell said the knife was then in his right hand.  This made the accused stop four to five metres from Powell and take a few steps backwards.  When he showed his badge to the accused, he observed that his eyes immediately went wide.  He went back to his car.  Powell felt he looked shocked at observing Powell's actions.  He observed him reach down and believed he put the knife back in his driver's side door cubby as he was getting in, closing his door and then driving forward.

[17]        Powell said this initial incident all happened very quickly and that he did not really have time to think of arresting the accused then and there.  He said he nonetheless was very concerned about the knife and, although off-duty, felt it was his duty to call 9-1-1 and get the knife, which he was then very concerned about.  He was concerned that, had he been a member of the public and not a police officer, then he might have been stabbed or worse.

[18]        He called 9-1-1 at 5:52 p.m. and remained on the line with them until the accused was later arrested.  He commenced following the accused, as well, trying to keep him in view.  Near the bottom of the Ironworkers Bridge, when Powell recalled both he and the accused were in the middle of three northbound lanes on the bridge, the accused who was ahead of him, stopped very quickly causing Powell, who was close to him, to have to brake hard to avoid hitting him.

[19]        The traffic on the bridge and up The Cut at the time, according to Powell, was normal.  Powell estimated drivers were doing 70 to 80 kilometres per hour and perhaps as high as 90 kilometres per hour.

[20]        While following the accused, Powell had two concerns.  He did not want him to take off out of his sight, but did not want him, as well, to know he was being followed.  Before long, Powell believed the accused knew he was being followed as he braked suddenly when, really, Powell felt there was nothing in front of him requiring him to do so.  He also changed lanes in The Cut without signalling, again, when Powell felt there was no reason to do so.

[21]        During this time, Powell also noticed the accused making gestures toward him giving him at times both the middle finger or, in addition, a blow-job gesture, which I need not describe in these reasons.  Powell was certain at the time these gestures were intended to antagonize him.  Powell did not feel at the time he was doing anything to antagonize the accused.

[22]        He did not believe the accused ever exceeded the posted speed limit, but agreed there were times, due to the traffic flow, that he and the accused ahead of him either increased or decreased their speed.  Mostly, he could see what the accused ahead of him was doing, but he readily admitted on cross-examination that there were times when he was following the accused that there were cars between them or when he could see only, say, half the Lexus vehicle that the accused was driving.

[23]        He described the accused's driving up The Cut as a lot of unorthodox manoeuvres including on multiple occasions changing lanes without signalling and cutting in and out of traffic as well as stopping a number of times.

[24]        Eventually, the accused took the Lonsdale Exit off the Upper Levels Highway, but after doing so, stopped again approximately 100 metres east of the light at Lonsdale, Powell felt, for no good reason, forcing Powell who was still following him to brake hard as a result.  Powell stated in his direct evidence that this was not a proper place to stop, there being no traffic ahead of the accused requiring him to do so. 

[25]        In less than five seconds, the accused then proceeded and turned left to proceed southbound on Lonsdale.  As he made this first turn onto Lonsdale, Powell observed the accused look back at him and make a further blow-job gesture in his direction.  Clearly, Powell felt the accused knew he was being followed.

[26]        Powell shortly observed the accused being pulled over by Constable Bal of the RCMP just north or above the 22nd Street intersection on Lonsdale in the fast lane.  There was traffic ahead of him causing him to stop.  Powell pulled up and, at 6:02 p.m., got out of his pickup and assisted briefly with the arrest of the accused, who was taken out of his vehicle and down onto the pavement and handcuffed.  He drew his pistol when he got out as he said he was concerned for his life and safety as well as that of Constable Bal and others around, as a knife is a deadly weapon.  Very little force was used, according to Powell, in the arrest as the accused was not fighting the police.

[27]        At some point, Constable Koehle arrived on the scene and Powell asked him to take a photo of the spit still visible on the pickup truck front quarter panel, and Koehle did so.  Both Bal and Koehle took photos at the scene including of the contents in the Lexus driver's door storage area.

[28]        Powell was shown various photos taken at the scene by both of the above officers and identified in Exhibit A, number 2, later marked as Exhibit 2, the knife in the door.  While it was hard to make it out, he could see the handle.  He thought he saw the knife at the scene of the arrest, but was unsure who took it out of the door.  He felt Exhibit B, photo number 3, looked like a portion of the knife.

[29]        In photo number 4, he could see something in a yellow wrapper to the right of the knife, but could not say what it was.  He was asked by Crown if he had seen this on the roadway, by which I understood she was referring to the above incident immediately south of the Ironworkers Bridge when both men had gotten out of their vehicles, and he said twice he did not recall that.  He might have seen it.  It did not stick in his mind.

[30]        He then clarified that he absolutely certainly did not see this item in the yellow wrapper, in essence, at the scene in the area of the bridge.  It was possible he had seen it at the arrest.  He did not recall.  He did look inside the accused's Lexus.

[31]        When shown the knife seized at the scene of the arrest by Constable Koehle, Powell said it was consistent with what he had seen at the scene; namely, on the south side of the Ironworkers Bridge.  I asked him how the knife was opened at the conclusion of his cross-examination, he having earlier said he had seen lots of knives like it.  He testified that a tab had to be depressed, then the blade flicked open.  He had some difficulty making it work which he attributed to it being a bit rusty.

[32]        Crown questioned Sergeant Powell as to his frame of mind on January 27th, 2015.  Powell testified that he did not really want to be doing what he was doing; that is to say, following the accused.  He denied at no point did he really want to be involved in a fight or confrontation with the accused.  This was the last thing he wanted to do.  He wanted to get home, have dinner, and unwind after a 10-hour shift.

[33]        He disagreed that where the incident took place on the southern approach to the Ironworkers Bridge that he had decided to get out first and show the accused who he was and said he had never threatened the accused.  He was, however, thereafter concerned about the knife. 

[34]        At about 6:30 p.m., he returned to the North Vancouver RCMP detachment and commenced making notes of the events that had just occurred for a Report to Crown Counsel. 

[35]        Constable Bal testified at the trial.  He, together with Sergeant Powell, arrested the accused on Lonsdale Avenue in the sense that Powell assisted in a preliminary way.  He was considered a high-risk suspect at the time and was thus put prone on the ground.

[36]        At Powell's request, Bal photographed the spit on the left front of Powell's vehicle and the lower portion of the Lexus driver's side door, which was left open after the accused had gotten out of his vehicle.  Bal said he saw no one at the scene, including the accused, touch or move anything in what he called the "cubby" in the driver's side door, including the knife located therein.  He said he did not make note particularly what else might have been in the cubby.

[37]        Bal first saw Constable Koehle on the scene after he had taken his above photographs.  He said he would be the lead investigator.

[38]        On cross-examination, Bal testified there appeared to be other things in the cubby, but made no note of them and took no photo of them.  He did not, in essence, search or go through the cubby area.  He said there were times between when the accused got out of the Lexus and his taking a photo of the cubby in the door with his cellphone that he was not looking at the Lexus driver's door, a period of approximately 15 minutes.

[39]        He could not in this period say if anything had gotten moved around in the door cubby.  He did not believe that this had occurred; that is to say, that the placement of items or their situation in the cubby was different in his photo of same compared to how it had been just as the accused had got out of the Lexus on Lonsdale Avenue.

[40]        I note there is certainly no evidence that the accused moved anything in this period nor that Constable Bal or Constable Koehle or indeed Sergeant Powell did, either.  Sergeant Powell was not asked if he had moved anything in the cubby area and gave no evidence that he had done so.  He really only looked inside the Lexus before leaving the scene, I think, in a cursory way.

[41]        Constable Bal said he had not entered the Lexus.  He had not seen the knife in the cubby until Sergeant Powell pointed it out for him.  He had heard in the dispatch call he had earlier received from the 9-1-1 operator, or as a result of it, that a knife was somehow involved in the incident.  Bal did not remove items from the Lexus driver's door cubby and photographed them either individually or collectively.

[42]        Constable Koehle, now an RCMP corporal, testified.  He responded to the dispatch call and drove to the scene on Lonsdale Avenue arriving about 6:05 p.m.  Constable Bal was then dealing with the accused at the rear of the Lexus, placing him in handcuffs.  He saw Sergeant Powell, who was known to him, also standing at the rear of the Lexus doing nothing. 

[43]        He called a tow-truck to take the Lexus to the North Van detachment and closed the open driver's side door.  When he was closing this door, he inspected the front-door pocket using his flashlight and saw what looked like the top of a black folded knife.  He took a photo of same at the scene.  He did not touch it before doing so.

[44]        He searched the Lexus at the detachment and then, after taking a photo, seized the black-handled knife.  He described the yellow item in photo number 4 taken at the detachment as something fairly innocuous.  He agreed it was possible this was a glue or caulking stick.

[45]        There was other stuff in the vehicle, but nothing he considered relevant beyond what he seized.  I have not set out all the items he did seize as some appear not relevant to the two charges I am dealing with.  He could not recall other tools being inside the Lexus.  Constable Koehle did not individually or collectively photograph all the items in the driver's door cubby.

[46]        I turn now to the evidence of the accused.  He is 24 years of age and stands six-feet-three-inches tall and weighs 150 pounds.  He had not worked on January 27th, 2015, and had only two things to do that day namely, have a haircut in Burnaby and meet a friend in North Vancouver to go downtown to Holt Renfrew to buy a pair of designer shoes for his girlfriend's birthday present. 

[47]        He had given himself all day to complete these two tasks and said he was in a rush and then in cross-examination, not in a rush or quite a rush on January 27th.  Further, on cross-examination, he said he had no idea why he had said last day in his direct evidence that he was in a rush.

[48]        He was driving in the exit lane at the north end of the Cassiar Tunnel proceeding northbound.  He signalled left to pull into the middle lane of traffic in order to merge.  Traffic was gridlocked and at a dead stop.  The driver to his left, whom he did not know at the time was Sergeant Powell, would not let him in.  He was ahead of this vehicle and felt he had room to merge to his left so he drove ahead one car length travelling approximately 200 metres in the process and cut in, in front of the vehicle immediately ahead of Powell's pickup.  This was outside the north end of the Cassiar Tunnel.

[49]        He merged into the middle lane before the exit lane ended and thus said he was never driving other than in a defined lane of travel and not on the shoulder.  On cross-examination, he was asked why did he not wait to allow Powell to proceed and pass him and then cut in behind Powell.  He said because he had the right of way as he was ahead of Powell with his signal on.  Powell did not have the right of way. 

[50]        I find that if the accused held this belief at all, he was at the time mistaken.  It would nonetheless be some form of excuse or justification for what he did.

[51]        He also said on cross-examination he was able to merge into the middle lane as the driver ahead of Powell was a normal citizen, not one who had had a bad day at work.  In cross-examination, he testified that Powell probably had had a bad day at work and wanted to take it out on him, I assume, by not letting him merge in front of the pickup truck that Powell was driving. 

[52]        The accused said this driver had allowed the traffic ahead of him to proceed and had remained stopped, unlike Powell, referring to the vehicle immediately ahead of Powell, and allowed him to merge.  The clear suggestion in the accused's evidence was that Powell had had a bad day at work evident in his driving on the evening in question.

[53]        Once in the middle lane and after travelling about 100 metres, the accused proceeded to move left again into the outside lane.  Powell was then behind him off to his right-rear bumper.  He stopped therein when the traffic ahead of him stopped.  The vehicle ahead of Powell, however, moved forward and Powell moved up in the middle lane to be beside him.  He had not stopped to allow Powell to pull even with him.

[54]        He denied yelling at Powell, but admitted he spat on his car for not letting him in.  In order to do so, he opened the passenger-door window, turned his head at some point collecting a quantity of spit in his mouth, did not lean over, and spat what he called a "loogie," apparently a real noun in the English language meaning a lump of sputum or phlegm coughed up from one's lungs, at Powell's vehicle.  It was not hard to hit him as he was about one metre away right beside him.  Loogies being thicker in mass than normal spit, according to the accused, therefore travel further. 

[55]        I found his evidence as to his intent in so doing both somewhat difficult to follow and reconcile.  He testified he was not aiming the loogie anywhere in particular, but was aiming it in Powell's direction.  He was trying to get it near him, but did not know if he was trying to hit his vehicle, but agreed he was aiming at it.  Later, he agreed he was aiming the loogie at Powell's vehicle and that it was meant for him.

[56]        He did not see the loogie land and testified that he had no idea if it hit Powell's vehicle.  When shown the photo of the spit on Powell's truck, he was unable to identify which side of the truck was shown, could not say it was his loogie, and said it looked to him like bird poop.

[57]        When asked why he had spit on Powell's truck, he said he wanted to communicate with Powell, wanted him to know that he was in the wrong, that he should have let people in.  "Who was he," Powell, "not to let me," the accused, "in, he was not superior to anyone else."  Nonsensically, he testified his action was not meant to antagonize Powell.  It was Powell who had antagonized him.

[58]        He said on cross-examination he was not then angry so much.  Rather, he felt Powell had insulted him in not allowing him to merge when he felt there was room to do so, and that Powell had "disrespected" him in so doing.  The disrespect was in not letting him in when he had the right of way.  The respectful thing for Powell to have done was to allow the accused to merge ahead of him. 

[59]        In his direct evidence, he said he was at the time both in a rush and angry that Powell had not let him in.  He nonetheless agreed that he should not have done what he did and regretted doing it.  It was a bad judgment call on his part. 

[60]        On cross-examination, he seemed to agree it was a childish gesture, a disgusting action on his part, and not a nice thing to do.

[61]        There is really no dispute on the evidence in this case that the accused did spit on Powell's truck.  I find this was a very aggressive act on his part and a highly inflammatory one.  On a scale of one to 10 of inflammatory driving conduct, it is surely closer to a 10 than a one.  I also find that at the time the accused spat on Powell's vehicle, he knew or ought to have known that it was an aggressive act on his part.

[62]        After he spat on Powell's truck, Powell merged in behind him and consciously, according to the accused, commenced tailgating him in traffic that was still gridlocked.  He suggested Powell's tailgating was a conscious act on Powell's part and not as a result of the overall traffic flow or lack of same.  He estimated Powell got from one to two inches of his rear bumper, so close he thought he would hit him.  As well, Powell was high-beaming him up and down for approximately one minute.

[63]        In response, he brake-checked Powell the whole time he was being high-beamed, pressing his brake pedal down for 10 seconds and then letting it off for one second, then on for 10 seconds, and so on, he estimated for a period of some 60 seconds.  He said he did this every time Powell got too close to communicate this fact to Powell and to get him to give the accused more space.  He felt Powell was high-beaming him on purpose and that he was then driving in a weird way as if he was out to get him and irritate him.  He denied he had brake-checked to aggravate Powell whose high beams were then blinding him in his rear-view mirror.

[64]        On cross-examination, he seemed to agree that his action in brake-checking could potentially cause a collision, but overall seemed to suggest all his driving on the night in question was normal.  At the time he was brake-checking, he was moving forward with the northbound traffic flow and said he had to brake when the traffic ahead of him forced him to stop.

[65]        As he was looking in his rear-vision mirror, he saw Powell jump out of his truck.  He saw a black shadowy figure starting to walk towards him.  He was still in his car and said he had not stopped first.  He said it was then dark out, but it looked like Powell's high beams were on.  He did not explain why he was not then being blinded by them.  He stopped and got out of his Lexus as he could see him.  He was not going to sit in his Lexus and allow Powell to run up to his window, not knowing what he was doing. 

[66]        By getting out, he testified, he had had an opportunity to defend himself whereas as if he remained in his car, he was a sitting duck.  He felt more secure outside his car.

[67]        He did, however, agree on cross-examination that he had a cellphone with him that evening and that he might have locked his car door and put the windows up, but felt had he done so, he would have had nowhere to go.  At this time, he felt a little bit scared, or scared and threatened. 

[68]        Further, on cross-examination, he agreed that if he felt threatened, he could easily have dialled 9-1-1 on his cell in his car, but said he never did this and gave as reasons or excuses for not doing so that maybe he did not think to do so or maybe he did not have time to do so.

[69]        He did agree, nonetheless, that there were cars all around him and that he could have asked for help from other drivers, but again, did not do so.  However, one reason he got out of his Lexus was for other drivers to see him.

[70]        He also was wondering at the time why Powell had gotten out of his vehicle.  At this point Powell, according to the accused, had walked, not run, past the front of his pickup truck and was stopped about one car length away from the accused's rear bumper.  The accused denied Powell ever stood behind the driver's door saying, had he done so, he would not have got out of his vehicle.  He estimated the distance from Powell's driver's door to his to be one to two car lengths.

[71]        The accused testified that when he got out of his Lexus, his mindset was to ask Powell what he was doing, who he thought he was doing this kind of stuff, what was his problem, to ask him why he had got out of his car, what his intentions were?  He then also felt that Powell had harassed him and was taunting him, aggravating him.  He twice in cross-examination testified in words to the effect, "He aggravated me into doing what I did," which I understood was a reference to his spitting, "He made me do it."  The harassment he referred to seemingly was not letting him in and jumping out of his truck.  He could think of no other reasons he felt harassed.

[72]        He put his Lexus in park and assumed Powell had done likewise with his pickup truck.  He said he was not upset when he got out of his Lexus, nor was he angry and wanting to confront Powell, but he said he really felt threatened by Powell's exit from his pickup.

[73]        At the time he got out, he said in his direct evidence that the vehicles ahead of him were just rolling, barely moving.  On cross-examination, he said it was not an option for him, in essence, to remain in his car and continue leaving Powell on the roadbed as traffic was gridlocked, but moving, stopping and starting, and thus it was impossible for him to continue.  It was, however, not moving when he got out.  Had he remained in his car, he felt Powell would have been at his driver's side window before the traffic ahead started moving yet again.

[74]        Powell had nothing in his hands he could see, but he then said he could not really see anything because he had a bunch of lights in his face.  As he got out of his Lexus, he reached into his driver's door storage area which contained both a knife and glue stick.  He said he grabbed something, the glue stick, to pretend he had an object in his hand with which to defend himself so Powell would not come at him.  He did not know who he was.  He was much bigger than the accused.  He held it in a manner as if it was a knife -- namely, the glue stick -- so that it looked like a knife.

[75]        On cross-examination, he was asked, if he really felt threatened by Powell, why did he not grab his knife?  He responded that he had not done so because he did not intend to hurt anyone.  In his direct evidence, he said he was not stupid enough to brandish a weapon.  He agreed that when he grabbed the glue stick, an item he said was about the same size as a knife, that he was not then in immediate or exact danger, but decided to put something in his hands as he did not know Powell's exact intentions.  He wanted to make him second-guess his actions. 

[76]        On cross-examination, he denied that he held a knife in his hand and said he had never touched it that day, but admitted it was then lodged in his driver's side door.

[77]        After he grabbed the glue stick, he turned towards Powell who was then variously one car length or 10 feet away from him.  He could see Powell's hands.  Powell did not hold up a badge or anything at any time, or say, "Police."  He said nothing at all according to the accused.  Had he said something, the accused believes he would have heard it.  Had he made known to the accused that he was a cop, he said he would have stopped.

[78]        The accused testified that when Powell saw him grab something, he immediately turned and jumped back into his truck.  He then returned to his Lexus.  At no time did he walk towards Powell when outside of his Lexus.  The whole event happened very quickly, he estimated, in some 30 seconds, I understood commencing from when the accused said he saw Powell get out of his truck.

[79]        In direct evidence, the accused explained why he had a glue stick in his car door.  It was a type of Super Glue adhesive and it was there because a piece of his Lexus' interior had fallen off earlier.  He did not say what part.  He apparently used the glue stick to repair it every now and again, the suggestion being that the repairs did not resolve the problem and were somehow an ongoing process.  He did not state in his evidence when he had last repaired this malfunctioning part of his vehicle.

[80]        He did not suggest that the knife found in the same area was used in this repair process, either.  He gave no evidence explaining why the knife that evening was in his car door at all.  He explained his possession of the knife and its use as relating to his recent part-time employment doing landscaping work.  He said he used it to cut Zip-ties that held pieces of wood together that he used for forms that he somehow constructed out of concrete in his work. 

[81]        He believed that on January 27th, 2015, he had other tools in his truck.  He had owned the knife for about two years.  He bought it for work purposes.  He also did not explain why the knife was not in the trunk of his vehicle along with his other work tools on the night in question.

[82]        Once back in their cars, he drove northbound and he tried to change lanes once in The Cut to let Powell pass him, but he did not.  He was trying to avoid Powell and did not see him behind him in The Cut.  Previously, on the Ironworkers Bridge, he drove at a normal speed with no brake-checking.  He recalled exactly what he did thereon, changing lanes after signalling once only.  He always signalled as he always drove properly.  He denied stopping or slamming on his brakes at the bottom of The Cut.  He then could not see Powell and believed he had lost him before he drove up The Cut at a normal rate of speed, or on The Cut itself.

[83]        He took the Lonsdale Exit and could not then see Powell in his rear-vision mirror.  He denied seeing Powell on this exit ramp and then making what Powell described as a blow-job motion.  He testified that the only time he could possibly have made the blow-job motion was when he was driving up The Cut, and did not recall making this gesture at that time.  It was possible he did at some point on the night in question, he might have, but he did not recall where it was.

[84]        He was eventually stopped and arrested on Lonsdale Avenue near the White Spot Restaurant.

[85]        Crown counsel showed the accused various photos taken by the police on January 27th, 2015.  As to Exhibit 5, photo number 3, he testified that it showed the contents of his Lexus driver's side door, but only after the police had switched everything therein around.  The glue stick when he was arrested was on top, but does not appear so in the photo.

[86]        As to Exhibit 2, photo number 2, he said this was a similar shot taken, again, only after the police had moved everything around to make it look like they wanted it to look and not the way it was.

[87]        As to Exhibit 5, photo number 4, showing the knife, the accused said it looked like the knife he had on the evening in question, but that he could not say that it was.  When Crown showed him the actual knife seized by the police marked as Exhibit 7, he said he did not recall what his knife looked like, it could be his knife, but he could not say that it was the one that he had on the night in question as the police had tampered with everything.  Again, he earlier testified he had owned it for two years and used it in his work with some regularity.

[88]        I turn now to the position of Crown and defence. 

[89]        Ms. Ostry points out that the evidence of Sergeant Powell is diametrically opposed to that of the accused.  I agree.  She invited the court to accept Sergeant Powell's version of events and, in particular, that it was the accused who first got out of his car, armed with a knife and not a glue stick, and moved towards the pickup being driven by Sergeant Powell.

[90]        She emphasized that the accused had felt that he had been disrespected by Sergeant Powell when he refused to allow him to merge into the northbound Ironworkers Bridge traffic earlier and to such an extent that he had spat on Powell's vehicle.  The accused was angry at the time, yelling at Powell before he spat on his truck.  He intended this action to communicate to Powell the disrespect he felt, who was Powell not to let him in, he was not superior to anyone else including the accused.

[91]        She argued that his spitting was consistent with his later driving which she argued was legally dangerous, aggressive, and confrontational.  She said the accused was not only angry at the material time, but in a rush which he admitted.  This was exemplified by his driving and, in particular, his early merge by driving ahead of Powell rather than waiting a few seconds to merge behind Powell.

[92]        As to Sergeant Powell, she submitted that I should believe him where his evidence differed from that given by the accused.  I should find that he was not in a rush or being confrontational and did not want a confrontation with the accused.

[93]        Central to the accused's story was that Sergeant Powell had got out of his pickup first after high-beaming him from behind and that at no time did Powell show a badge or identify himself as a police officer.  He, therefore, felt threatened, but nonetheless got out of his vehicle, essentially a place of safety. 

[94]        Ms. Ostry submits that this makes no sense.  Why would the accused do this?  He could close his windows and use his cellphone to call 9-1-1.  His excuse that he did not have time to consider such a course of action, that is to say, calling 9-1-1 but did have an opportunity as he got out to think of appearing to arm himself with a glue stick to trick the following driver into thinking he was going to defend himself, also makes no sense.

[95]        Part and parcel to this submission, not verbalized by Crown, I think, is that the accused also had the time to make a decision as to which item to retrieve from the door, a glue stick versus a knife, both of which items were in the driver's door.  Crown argues that the two items, the knife and the glue stick, are quite different.  It is not reasonable to find that Powell could confuse the two items.  I should accept Powell's evidence that he saw a knife of a type that he was familiar with. 

[96]        This finding would be consistent with other evidence in the case as outlined above, for example: the accused being angry; feeling disrespected; not initially appreciating the following driver was a police officer; spitting on his car; and generally wanting to send a message to him that he could not do what he did.  Grabbing a knife was totally consistent with the aggression shown by the accused at the outset.

[97]        It is not reasonable to find Sergeant Powell confused the orange glue stick with a black-top with a knife.  The two items, as I have said, could not reasonably be confused.  It makes no sense if the accused felt threatened by the following driver, who he did not know was a police officer but was much bigger than he was, that he would grab the glue stick and not the knife, which he knew was there.

[98]        Sergeant Powell clearly felt threatened by the knife the accused held at the low-ready.  He brandished it.  Powell testified that he believed if he was not a police officer and so identified himself, he would have been harmed.

[99]        Crown said even if I found he brandished a glue stick and not a knife, Exhibit 7, and that the accused intended to use it as a weapon, that a pretend weapon would be enough to meet the definition of "weapon" found in s. 2(b) of the Criminal Code.  It states as follows:

[100]     In such event, Crown argued, if I were not satisfied beyond a reasonable doubt that the accused brandished a knife, but did brandish a glue stick intending to use it as a weapon, I could then only convict the accused of assault simpliciter and not Count 1 as laid pursuant to s. 267(a) of the Code. 

[101]     On all the evidence, I should find that the accused took the item out to threaten or intimidate the following driver, Powell.

[102]     As far as Count 2 was concerned, the charge of dangerous driving, she invited me to consider all the circumstances relating to the accused's driving on the night in question from the moment he cut in ahead of the vehicle ahead of Powell, believing he was in the right to do so, to his detention on Lonsdale Avenue and find that his driving, assessed objectively, was a marked departure from the norm and within the test set out in, for example, R. v. De Bortoli, 2012 BCSC 1957, a decision of Butler J. at page 4 and 5.  His driving did not meet the test of a reasonable and prudent driver in the circumstances.

[103]     Ms. Ostry also referred me to three further cases, all of which I have considered, namely, R. v. Zurkoski, 2000 BCPC 194; R. v. Harmiz, 2012 ONSC 5556; and R. v. McKay, 2014 ONCJ 540, all being road-rage cases and in all of which, as also occurred in De Bortoli, the accused was convicted of dangerous driving pursuant to s. 249(1)(a) of the Criminal Code.

[104]     I turn now to the position of the defence as outlined by Mr. Myers in his closing submissions. 

[105]     Mr. Myers argued that the offence in s. 267 requires an assault.  Section 267 states as follows:

[106]     Thus, the first aspect of the charge in issue is the commission of an assault.  Mr. Myers referred the court to s. 265(1)(b) of the Criminal Code which states as follows:

[107]     Mr. Myers argued that based on R. v. Schreiber, 2011 BCPC 511, it was important for the court to consider whether or not the accused had the present ability to effect his purpose and indeed, what was the purpose he was trying to effect? 

[108]     In Schreiber, the accused was charged with threatening and assaulting a police officer under s. 253(1)(a) and 264.1(1) and 270(1)(a) of the Code after having driven his car into a ditch, likely while intoxicated.

[109]     A police officer was called by a civilian witness and arrested the accused while still in his car.  When he got out, he refused to put his hands behind his back and took a couple of steps towards the officer, assumed a fighting stance, tucked in his chin, turned sideways with one shoulder forward, made a fist, and swung it towards the officer's face.  The punch did not connect as he was, according to the officer, 10 to 12 feet away at the time he threw the punch.  The officer did not believe that the punch thrown by the accused could have hit him due to their distance apart and must have so testified at the trial.  The trial judge found this was so.

[110]     The trial judge referred to s. 265(1)(b) of the Criminal Code and said this in paragraph 31 of her reasons:

[111]     Thus, the trial judge appears to have concluded that the officer did not believe on reasonable grounds that the driver had the present ability to actually hit him.

[112]     Included in the defence book of authorities is a higher binding legal authority on point, namely, R. v. Dawydiuk, 2010 BCCA 162, a decision of Rowles J.A. of our British Columbia Court of Appeal.  Here, the accused after drinking in a bar and becoming obnoxious, no doubt due to his alcohol intake, became involved in a confrontation with persons outside the bar and, to escape their presence, drove his pickup truck onto a sidewalk and struck and injured a pedestrian in so doing.  The accused said he drove as carefully as he could in so doing and did not intend to hit anyone on the sidewalk.

[113]     His appeal from conviction of assault with a weapon, (his truck) under s. 265(1)(b) of the Criminal Code, seemed to turn on an argument that he did not have the requisite criminal intent when he drove his pickup on the sidewalk.  Rowles J.A. said this on point in paragraphs 29 to 32 of the court's reasons in dismissing his appeal:

[114]     I have considered these principles in making my decision on Count 1 in this case.  As I have said, Mr. Myers argues the court must consider the accused's ability to effect his purpose and determine what the purpose was.

[115]     Mr. Meyers' further submission on point seemed to boil down to two propositions:

[116]     Mr. Myers argued strenuously that I should find the accused to be a credible witness, prefer his evidence to that of Sergeant Powell, or at least have a reasonable doubt as a result of the accused's evidence.  Powell related in his evidence what he thought occurred and was very selective, in counsel's view, in his memory of events.  Counsel suggested that, really, Sergeant Powell was too far away from the accused when driving towards and up The Cut on the Upper Levels Highway to really have been able to accurately observe the accused's driving.

[117]     In any event, there was, as related to Count 2, no speeding and no accident, only at best possibly a series of Motor Vehicle Act infractions.  Negligent driving, in counsel's view, did not amount to a criminal offence. 

[118]     He referred me to R. v. Yan, 2008 BCSC 524, on point, especially paragraphs 42 and 43 and, as well, the decision of R. v. Plumpton, [2014] A.J. No. 680, and the leading case of R. v. Beatty, 2008 SCC 5 (CanLII), [2008] 1 S.C.R. 49.

[119]     As to the accused's credibility, Mr. Myers made the following points:

[120]     Mr. Myers referred me to the very useful discussion on credibility in R. v. Plumpton at paragraph 60 to 70 which includes a discussion of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, which clearly applies in the case at bar.  I found to be helpful in particular the statements at paragraph 66 of the trial judge, Manderscheid J., which I will not now quote.

[121]     I intend to deal with the important and critical issue of credibility in this case first.  I will outline the principles on point and make findings of fact on the credibility of the various witnesses, thence findings of fact as to what occurred on January 2015, and then deal with the two charges the accused faces in light of these findings of fact.

[122]     One helpful decision on point is that of R. v. Parent, 2000 BCPC 11, a decision of Her Honour Judge Ann Rounthwaite of this court where she dealt with the credibility of witnesses generally and how a trial judge can assess it at paragraphs 4 and 5 of her reasons.  One point that she referred to is listed as item 5 as follows:

[123]     In paragraph 9 of her reasons in Parent, Her Honour Judge Rounthwaite used the term "ring of truth" as a different way of expressing the point in paragraph 5 above; namely, the sense of the witness' evidence. 

[124]     On this same point, our British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, has commented, albeit in the context of credibility in civil actions.  Nonetheless this case is often referred to in criminal cases.  The test, if you will, is found at page 4 of the Quicklaw Report of the reasons of our Court of Appeal and succinctly stated is as follows, and I quote:

[125]     I will deal with the Crown witnesses called first at the trial and then the accused.

[126]     Constable Bal was, at the time, a member of approximately nine years' experience in the RCMP and Constable Koehle had similar experience having joined the North Vancouver RCMP detachment in 2006.  Mr. Myers did not really suggest that these two police witnesses were other than credible witnesses.  He said, and I agree, that they each gave their evidence in a fair way.

[127]     He was, however, somewhat critical of the inventory of the contents of the accused's vehicle taken by Constable Koehle and of the quality of photos taken by both constables both at the scene and, in Constable Koehle's case, later at the detachment where the police had the accused's vehicle towed.  I agree that the photos, some taken with a cellphone on the Upper Lonsdale roadway at the scene of the arrest, are not of perfect quality, but they do, I think, have the benefit of being taken in a very timely way at the scene of the arrest of the accused and in close proximity to the time of the same.

[128]     It would have been helpful for one or other of these two officers to have emptied all the contents of the driver's door cubby where the knife, Exhibit 7, was located and to have photographed each in turn as occurred with the knife.  However, I find there was nothing that occurred at the scene of the arrest or indeed later to flag any particular reason for either of them to do this.  Constable Koehle said the other items therein looked pretty innocuous to him, meaning harmless, and he therefore did not photograph them.

[129]     There is no evidence in this case that the accused ever made any statement at any time about the glue stick, spontaneous or otherwise, that might have focused anyone's attention on it.  I am not to be taken as saying he had any legal responsibility to do so, only that he did not.  He, of course, has a right to remain silent at all times.  All evidence at the scene pointed to only the knife having significance.

[130]     I find both these police officers to be credible witnesses who gave their evidence in a careful manner in court and seemed ready to admit the obvious as most truthful witnesses do. 

[131]     I turn to Sergeant Powell, a more senior and more experienced officer than either Bal or Koehle, with some approximately 19 years of experience with the RCMP on the evening in question.  I have set out above in summary fashion Mr. Myers' submissions as to his credibility.

[132]     Powell said that after the events of January 27, 2015, and that evening, he returned some 40 minutes after his first dealings with the accused on the highway to the North Vancouver RCMP detachment to prepare his notes and report.  These materials, I think, would have been disclosed to the defence in the normal way.  During his cross-examination, it was not suggested that there were, for example, material inconsistencies in his trial evidence as compared to these notes and their content.

[133]     I have carefully reviewed all my notes of his evidence.  His direct evidence was internally consistent and unchanged in cross-examination for the most part.  I find that, particularly with respect to the events said to be an assault, Sergeant Powell is an entirely credible witness.  I will comment on his evidence below relating to his observations of the accused's driving, particularly in The Cut and beyond, and the weight to be attributed to this evidence.

[134]     I turn now to the accused.  For the most part, I did not find the accused to be a credible witness.  Central to the accused's story, I think, was that he was not in a hurry on the evening in question, not upset, and in no way in an aggressive mood, and that after he spat on Sergeant Powell's vehicle, Sergeant Powell was the aggressor, so much so that he high-beamed the accused and, really, on the first opportunity he could, got out of his truck and came at the accused who then had to react to Powell's aggressive behaviour.  I believe none of this.  In my view, this accused has merely fashioned or made up an untruthful and unreasonable story to meet Powell's evidence as given at trial.

[135]     It was, in my view, a material internal inconsistency in the accused's evidence for him not to recall if he was in a rush on the evening in question or not.  Drivers who are not in a hurry, in my view, are more likely to overlook what they consider to be impolite actions on the part of other drivers.  I find the accused was in a rush before meeting Sergeant Powell on the highway.

[136]     I accept Powell's evidence as to how he merged onto the Number 1 Highway.  This evidence clearly shows he was in a hurry.  I accept that he yelled at Powell or at a driver in the vicinity having done so and later spat on Powell's truck.  I accept Powell's evidence that no one does this sort of thing and that it was wholly erratic behaviour, the type of thing a very angry person might do.

[137]     I do accept that the accused felt disrespected by Powell when Powell refused to allow him to merge, however, at best, due to an entirely erroneous view as to his rights as a driver under the Motor Vehicle Act in this province.  He did not have the right of way.  His assertion in his evidence that he did is more likely an excuse for what he did.  His evidence that Powell's refusal to allow him to merge was probably because Powell had had a bad day at work is without foundation and is, frankly, in my view, sheer nonsense.

[138]     I found the accused's initial evidence as to his loogie to be very evasive, for example, where was he aiming it and whether he was actually trying to hit Powell's vehicle or not.  His later testimony on point was inconsistent with his first evidence on point.  I find he was trying to hit Powell's vehicle with his loogie and did so and that he went to some considerable effort to deliver it while not leaning across the passenger seat, but delivering it through the distant passenger-side window.  I have already said his evidence that he did not see it land and had no idea if it hit Powell's vehicle is nonsense as was his evidence that it looked like bird poop.

[139]     I have commented above on the inflammatory and aggressive aspect of the accused's expectoration in this case.  This single act, in my view, speaks volumes as to the accused's frame of mind and mental state on the evening in question, all negative and characterized with anger.

[140]     I had trouble making sense of the accused's evidence that Powell was, when following him, high-beaming him, but was also within one to two inches of his bumper.  In heavy traffic, all vehicles' lights on northbound-vehicle traffic faced the rear of the accused's Lexus.  Powell's headlights would, I think, to some extent have been in this close distance hidden by the Lexus trunk.  In all circumstances, I do not see exactly how the accused had been blinded at the time by Powell's actions.  This is by no means a compelling factor in my assessment of the accused's credibility.

[141]     His evidence that Powell got out first and that he had not stopped makes no sense.  The picture he painted was that Powell would have to pursue him on foot if and when he moved forward.  This seems highly unlikely.  I am also in full agreement with Crown's submission on point that had events occurred as the accused states they did, under all circumstances, the accused could and would probably have stayed in his car and kept going with the flow of traffic and, as well, called 911 to report Powell.  He would have had time to do this.  He would not, in my view, have been a sitting duck and it is, again, nonsense to expect the court to believe that he would have felt more secure outside his car than within.

[142]     His explanation of what occurred just before and when he and Powell got out is not in accordance with the probabilities that any reasonable person in that place and in those conditions at hand would recognize as reasonable.  It does not make sense.  It does not have an air of reality to it and I do not believe it.

[143]     By counterpoint, Sergeant Powell's description of what occurred does make sense coupled with my findings that the accused was in a rush, was angry, and felt disrespected by Powell to such an extent that, with some effort, he spat on his car.  He was ahead of Powell.  When he stopped, Powell had to stop.  The accused then had an opportunity to make a further statement or take action had he wished to do so.  Powell was then the sitting duck and at no time until the badge was displayed known by the accused to be a police officer.  It is not a stretch to find that none of the events on the evening up to and including the vehicle stops at the bridge approach would have likely occurred if Powell had been driving a marked police car.

[144]     I also note the accused never, in my view, sensibly explained just why the knife and glue stick were on January 27th in the driver's door cubby.  He said he was not working that day.  His landscaping tools were in his trunk.  The knife he had owned for two years and used at work in a way that, frankly, made no sense to me was not with his work tools in the trunk, but yet it was a work tool.  The glue stick apparently was used to fix some part of the interior of his Lexus.  Again, this was not really made clear to me nor was it explained why the glue stick was in the cubby on the evening in question, the repair having been made.

[145]     There is no evidence the police seized this glue stick and that it was not returned to the accused with the Lexus when he eventually picked it up from the RCMP detachment, whenever that might have been.  Nonetheless, the only evidence on point given by the accused was his verbal description of it, notwithstanding that it is central to his position (not the Crown's) that he held it on the evening in question and that, insofar as Sergeant Powell says he held a knife, he was mistaken.

[146]     I find his evidence given on cross-examination when shown the knife he had owned for two years and used at work that he did not recall what his knife looked like, it could be his, but he could not say that it was, was disingenuous.

[147]     Where the accused's evidence with respect to the alleged assault differs from that given Powell, I find I prefer that of Sergeant Powell. 

[148]     I find that the Crown has proven beyond a reasonable doubt the following facts on January 27:

[149]     This is not a case as in Schreiber where the accused attempted to punch Sergeant Powell, but was so far away, not only did the blow miss, but could not reasonably have hit its intended target.  In this sense, I think Schreiber can be distinguished.  We are not in the case at bar dealing with the application of force against another in quite the same fashion, but rather more so a threat by an act or gesture on the part of the accused to do so.  Here, there was clearly threatening conduct amounting to the act in that the accused armed with a knife got out, moved towards Powell, and with what Powell essentially described as a menacing look, my word, not his.  I am of the view that at the time he was close enough to Powell to lead to Powell to reasonably believe on reasonable grounds that he could then effect his purpose of applying force to Powell's person and that he had the present ability to effect this purpose, threatening Powell and Powell believed this, unlike Constable Hueft in Schreiber.  And I am of the view that his belief was, in all the circumstances, reasonable having regard to his extensive earlier experience with violent persons.

[150]     Thus, I am not only of the view that he had the ability to carry out his purpose, but as well, that he caused Powell to reasonably believe that he had the present ability to do so.  I find that the accused threatened using the knife as he did to apply force to the person of Powell.

[151]     I have considered R. v. W.(D.) with respect to Count 1.  I have said I do not believe the evidence of the accused that is relevant to Count 1.  I do believe he was angry and spat on Powell's car.  I find that I am not left with a reasonable doubt by reason of the accused's evidence even though I do not believe it.  I do find, based on the evidence in this case that I do accept as truthful, that I am convinced that the Crown has proven Count 1 beyond a reasonable doubt and I convict the accused of Count 1. 

[152]     I have considered all of the above authorities.  Here, the test is whether or not the accused's driving in the circumstances can be considered a marked departure from the reasonable standard of care of a driver in like circumstances.  The focus with respect to the criminal act is on the manner of the accused's driving and not its consequences.  Nonetheless, the court must distinguish between driving that is merely negligent and that which is sufficiently dangerous to attract a criminal sanction.  Not every departure from the civil norm is to be criminalized; see R. v. De Bortoli at paragraph 17 to 19.

[153]     Constable Powell said he was shocked by the accused getting out of his car as he did brandishing a knife.  He was not expecting this.  The accused took off immediately.  Powell had to get back into his car and commence following the accused, during which process, he was also calling 911 and speaking to the operator.  While he professed to not having lost sight of the accused on the Second Narrows Bridge, up The Cut, and on the Upper Levels Highway, it is clear that, from time to time, there was many as a number of cars between him and the accused, unlike the situation where the assault occurred when Powell was right behind the accused's vehicle at the material time with a multitude of drivers' headlights illuminating the scene.

[154]     Powell said the accused never exceeded the speed limit.  There is no evidence he hit anyone or caused an accident of any kind.  Powell fairly admitted, I think, there were times when he did not see the accused, only a very few moments, times when he could only see half his car, but he could see most of what was going on, that he was doing the best he could to stay with him.

[155]     I have considered all of the accused's driving commencing with the merge one car ahead of Sergeant Powell to his arrest on Upper Lonsdale Avenue.  I am of the view that despite Sergeant Powell's best efforts to follow and observe the accused, that due to the amount of traffic, the fact that he was admittedly multitasking while driving and talking to 911 at the same time, and had been to some extent shocked by the accused's earlier activities, that he would not have been able to see and remember accurately all of the accused's driving abnormalities.  For the most part, these seemed to amount to less egregious matters such as failing to signal changing lanes and braking unexpectedly.

[156]     I am not of the view, considering all the circumstances, that the driving of the accused on the evening in question can properly be characterized as dangerous within s. 249(1)(a) of the Criminal Code of Canada and this charge is accordingly dismissed.