IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Tomkowicz, |
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2018 BCSC 43 |
Date: 20180115
Docket: 27286
Registry: Vancouver
Regina
Respondent
v.
Robert Jacek Tomkowicz
Appellant
Before: The Honourable Mr. Justice Bowden
On appeal from: An order of the Provincial Court of British Columbia, dated June 23, 2017 (R. v. Tomkowicz, Richmond Registry No.: 97050654)
Reasons for Judgment
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Counsel for the Crown: |
E. Wolfram |
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Counsel for Appellant: |
P. Miranda |
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Place and Date of Hearing: |
Vancouver, B.C. October 11, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. January 15, 2018 |
[1] The appellant, Mr. Robert Tomkowicz, appeals from a decision of Judicial Justice Dodwell in the Traffic Division of the Provincial Court of British Columbia.
[2] The appellant was issued a ticket on June 22, 2016 for crossing a solid line contrary to s. 151(b) of the Motor Vehicle Act , RSBC 1996, Chapter 318, (the “MVA”), and for driving in an HOV lane contrary to s. 152 of the MVA.
[3] The appellant was travelling southbound on Highway 99 in Richmond, B.C., when he was observed by Constable Lee, a member of the RCMP, as the lone occupant of a vehicle in the lane closest to the centre line just north of the Blundell overpass. At that point there are three lanes, two being for through traffic and an HOV lane on the west side of the highway. The HOV lane becomes an exit lane for the Steveston Highway.
[4] Cst. Lee testified that just south of the Blundell overpass he observed the appellant’s vehicle change to the middle lane and then cross over the solid line separating the HOV lane from the middle lane into the HOV lane. He said that the appellant’s vehicle reached some heavy traffic congestion in the HOV lane as it became the exit lane for the Steveston Highway. Cst. Lee then pulled in behind the appellant’s vehicle and activated his emergency lights. The appellant’s vehicle pulled over onto the shoulder adjoining the HOV lane and Cst. Lee issued the ticket.
[5] It is apparent from a photograph taken by the appellant and described by him, (attached to his affidavit as Exhibit “E”) that the appellant was stopped by Cst. Lee at a point where the HOV lane had become the exit lane to the Steveston Highway because it is demarcated by a dotted line rather than a solid line. At the point where the exit lane begins the solid line separating the HOV lane from the other lanes becomes a dotted line.
[6] The appellant admitted that he entered the HOV lane after passing the intersection with the Westminster Highway when he encountered a back- up of vehicles waiting to enter the Massey Tunnel. He said that he entered the HOV lane for the purpose of exiting onto the Steveston Highway. Shortly thereafter he was stopped by Cst. Lee and ticketed. Although he was stopped when his vehicle was adjacent to the exit lane, the uncontradicted evidence of Cst. Lee establishes that the appellant had crossed the solid line and entered the HOV lane before he was stopped.
[7] Based on Cst. Lee’s testimony it is apparent that the appellant entered the HOV lane just south of the Blundell overpass. The HOV lane continues until a point where Williams Road ends in a T-intersection at Highway 99 which is about 1.68 kilometers further along the highway after the Blundell overpass. At that point the solid line between the HOV lane and the adjoining lane becomes a dotted line and the lane continues for several hundred meters as an exit lane for the Steveston Highway.
[8] The appellant alleges that the Judicial Justice erred in law by:
1. Failing to properly consider, interpret and/or apply s. 156 of the MVA.
2. Failing to properly consider, interpret, and/or apply s. 42.02(2) of the Regulations under the MVA.
[9] Section 151(b) of the MVA provides:
151. A driver who is driving a vehicle on a laned roadway
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(b) must not drive it from one lane to another if that action necessitates crossing a solid line,
…
[10] Section 156 of the MVA provides:
156. If the driver of a vehicle is causing the vehicle to enter or leave a highway and the driver has ascertained that he or she might do so with safety and does so without unreasonably affecting the travel of another vehicle, the provisions of sections 151 and 155 are suspended with respect to the driver while the vehicle is entering or leaving the highway.
[11] Section 42.02(2) of the Regulations under the MVA provides:
42.02(2) A driver of a vehicle that is not a high occupancy vehicle must not use a high occupancy vehicle lane except if necessary
(a) to make a right turn from the lane, at the first intersection where the turn is permitted, to access a highway intersecting the lane or premises adjacent to the lane,
(b) to make a right turn from an intersecting highway or premises adjacent to the lane, at the first intersection where the turn is permitted, to access the highway in which the lane is situated, or
(c) to merger into an adjacent lane for the purposes of paragraph (b).
[12] The appellant’s arguments regarding both s. 156 and Regulation 42.02(2) are somewhat similar. He argues that he crossed the solid line to enter the HOV lane to leave the highway and that he entered the HOV lane because it was necessary in order to safely enter the exit lane onto the Steveston Highway.
[13] With regard to s. 156, while the Judicial Justice did not specifically address the provisions of that section, the evidence before him was that the appellant’s vehicle crossed over the solid line in order to enter the HOV lane. (Page 5, lines 16 to 19 of Transcript of Proceedings) The evidence is that the appellant entered and remained in the HOV lane for several hundred meters before it became an exit lane. While the appellant may have entered the HOV lane to avoid traffic congestion in the through lanes he did not cross the solid line to leave Highway 99. He crossed the solid line to enter the HOV lane where he remained for several hundred metres.
[14] Had the appellant left the HOV lane shortly after entering it or had he lawfully entered the HOV lane as discussed below, then the exception in s. 156 may have applied.
[15] With regard to the Judicial Justice’s interpretation of Regulation 42.02(2), the standard of review is correctness. (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para. 23).
[16] The exception in s. 42.02(2) requires that the use of an HOV lane be “necessary” to make a right hand turn from that lane.
[17] Such necessity may arise where the HOV lane is the furthest lane to the right and there is no designated turning lane. Here the evidence was clear that there was a designated exit lane at the point where the HOV lane ended allowing an exit to the right onto the Steveston Highway.
[18] The meaning of “necessary” varies depending upon the context. I was not referred to any cases where the meaning of that word has been considered in the context of the MVA. In the Copyright Act, R.S.C. 1985, c. C-42, it has been interpreted to mean “…reasonably useful and proper to achieve the benefits of enhanced economy and efficiency.” (SOCAN v. Canadian Assn. of Internet Providers, 2004 SCC 45 at para. 91)
[19] In the context of the MVA, the broad legislative scheme of that statute has been said to promote highway safety and minimize the overall human and economic cost of accidents. (R. v. Kennedy, 1987 CanLII 2453 (BCCA))
[20] As one of the main purposes of the MVA is to promote safety on the roads, it is my view that entry into an HOV lane may be necessary to make a right hand turn where it is established that entry into a designated right turn lane cannot be done safely because of traffic congestion or otherwise. For example, a driver may establish that he safely entered an HOV lane to make a right turn to avoid having to attempt to enter a highly congested designated right turn lane which could be unsafe. If that is established by the evidence then the exception in s. 42.02(2)(a) and s. 156 would appear to apply.
[21] The appellant submits that it became necessary, for safety reasons, to move into the HOV lane before it became an exit lane. However, the evidence before the Judicial Justice does not establish that the move by the appellant into the HOV lane was due to safety concerns.
[22] In my view, although the Judicial Justice did not address the requirement of necessity in s. 42.02(2) the conclusion reached by him was correct. On the evidence before him he correctly concluded that where there is a designated exit lane it was not necessary for the appellant to use the HOV lane before entering the marked lane. The evidence was that the appellant had entered the HOV lane several hundred meters before the designated exit lane appeared.
[23] In the end result, the Judicial Justice correctly decided that the appellant had improperly crossed a solid line and occupied an HOV lane as a single occupant driver.
[24] The appeal is dismissed.
[25] No award of costs is made.
“Bowden J.”