R. v. Malcolm,


2015 BCSC 306

Date: 20150227

Docket: 80905






Kenneth Malcolm


The Honourable Mr. Justice Rogers

appeal from: A decision of the Provincial Court of British Columbia, dated June 19,
2014 (R. v. Malcolm June 19, 2014), Kelowna AH69047358)

Reasons for Judgment

Counsel for the Appellant:

C.P. Armour

Counsel for the Crown:

P. O’Neil

Place and Date of Hearing:

Kelowna, B.C.

February 23-24, 2015

Place and Date of Judgment:

Kelowna, B.C.

February 27, 2015



Mr. Malcolm appeals his conviction on a
charge of driving without reasonable consideration for other persons using the
highway contrary to s. 144(1)(b) of the Motor Vehicle Act, R.S.B.C.
1996. c. 318 (the “Act”). He asserts that the evidence at trial
could not support a guilty verdict.

Proceedings at Trial

The learned Judicial Justice of the Peace heard
evidence from one witness at trial. That was Cst. Charron. Cst. Charron
testified that on the evening of January 11, 2013 he was operating an unmarked
police vehicle. He was patrolling Highway 97 as it runs through West
Kelowna, B.C. The speed limit on the highway in that area is 80 kph. Cst.
Charron’s vehicle was equipped with speed sensing radar and a dash mounted
camera. The camera recorded the events as they occurred.

Cst. Charron observed, and the camera recorded,
a pickup truck being driven ahead of the police vehicle. The truck was
initially traveling at about 82 kph. The truck suddenly accelerated to between
95 and 100 kph and came up behind another vehicle in the same lane. The truck
traveled for some time within one to two car lengths of the vehicle ahead of
it. The truck’s speed continued to be well in excess of 80 kph.

The truck then showed its right turn signal and
moved into the lane closest to the curb. It accelerated again, this time
reaching speeds in excess of 100 kph. The truck came up close behind another
vehicle that was traveling ahead of it. Again, the truck came within one or two
car lengths of the vehicle in front in the curb lane and stayed at that
distance for some time.

The vehicle in the curb lane applied its brakes
for a brief moment. The truck applied its brakes as well and decelerated. The
truck then fell behind the vehicle it had first followed, applied its left turn
signal, and pulled again into the lane closest to the center lane. The truck
moved within one or two car lengths of the vehicle ahead of it and carried on
in that fashion for some distance.

Throughout these events the truck’s speed varied
from 90 to as much as 113 kph.

Other than the brake light flashing by the
second vehicle the truck followed, no other motorist on the highway indicated
that the truck’s driving style was bothersome.

After following it for several kilometers and
watching and recording its antics, Cst. Charron pulled the truck over. The
appellant was behind the wheel. Cst. Charron testified that he considered
issuing three violation tickets to the appellant: one for speeding and two for
following too closely. He believed that the combined penalties for those
infractions would have been greater than the penalty for a single violation of the
Act. Cst. Charron testified that he exercised his discretion by issuing
a ticket for the latter rather than the former three infractions.

Result at Trial

The learned Judicial Justice of the Peace (the
“learned JJP”) who heard the case considered the evidence carefully. He noted
the appellant’s driving style and the fact that other than the flashing brake
lights of the vehicle in the curb lane, no other motorist appeared to have been
discommoded by the appellant’s behavior.

The learned JJP instructed himself as to the
offence described by s. 144(1)(b) of the Act. Paraphrasing his
reasons for judgment, he described the test as whether the totality of the
appellant’s driving departed from the standard of a reasonably prudent driver
given all the circumstances of the time and place.

The learned JJP observed that the appellant’s
behavior occurred at night, on a declining stretch of highway, in the midst of
traffic on the highway, and at speeds well in excess of the speed limit. He
concluded that in all the circumstances the appellant had not driven with
reasonable consideration of other users of the highway and, in the result,
convicted the appellant of the charge.

Parties’ Positions


The appellant says that the learned JJP’s error
lies in his finding that the appellant could be found guilty of speeding and
two counts of following too closely and that it was on the totality of those
three titular infractions that the learned JJP based his decision to convict.

The appellant does not contest the learned JJP’s
conclusion that the appellant was speeding. He does argue that the
circumstances were not such as could found one or two convictions of following
too closely. The appellant says that in order to be guilty of following too closely,
the evidence at trial must demonstrate that the following created an objective
element of danger for the motorists involved. The appellant says that the
evidence in the present case does not go so far as to show that anyone was
endangered by the appellant’s driving on the night in issue.

The appellant says, therefore, that the learned
JJP’s decision to convict the appellant of driving without reasonable
consideration for other users of the highway was fundamentally flawed and
cannot be sustained.


The respondent argues that the learned JJP did
not base his decision on whether one or two or three separate infractions
occurred, but rather on the totality of the character and quality of the
appellant’s behavior behind the wheel that night.

The respondent says that when one considers the
whole of that behavior, the conviction is justified and that the appeal should
be dismissed.

Standard of Review

I am indebted to Romilly J. who, in HMTQ v. Pomeroy, 2007
BCSC 142, summarized the principles of review in a summary conviction appeal:

(A)      Summary Conviction Appeals

[25]      The right to appeal from a summary conviction
matter is governed by Part XXVII of the Criminal Code, R.S. 1985, c. C-46.
Section 822(1) of the Criminal Code provides that in a summary conviction
appeal pursuant to s. 813, ss. 683 to 689 relating to appeals of
indictable offences, except s. 683(3) and s. 686(5), apply. Section
686(1) states:

686(1) On the hearing of an appeal
against conviction… the court of appeal

(a) may allow the appeal where it
is of the opinion that

(i) the verdict should be set aside
on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial
court should be set aside on the ground of a wrong decision on a question of
law, or,

(iii) on any ground there was a
miscarriage of justice;

[26]      The function of the summary conviction judge is to
determine whether the trial judge could reasonably have reached the conclusion
that the appellant was guilty beyond a reasonable doubt: R. v. W.(R.),
[1992] 2 S.C.R. 122; R. v. Grosse (1996), 29 O.R. (3d) 785 (Ont. C.A.).

[27]      In R. v. Hay (1990), 25 M.V.R. (2d) 121
(B.C.C.A.), Toy J.A., stated at 127-8, quoting Estey J. in R. v.
, [1982] 1 S.C.R. 2 at 14:

An appellate tribunal has neither
the duty nor the right to reassess evidence at trial for the purpose of
determining guilt or innocence. The duty of the appellate tribunal does,
however, include a review of the record below in order to determine whether the
trial court has properly directed itself to all the evidence bearing on the
relevant issues…

And Toy J.A. stated at 128:

The duty of the summary conviction
appeal court judge is to examine not only the trial Judge’s reasons but also
all of the evidence to determine whether the trial Judge’s findings and
ultimate conclusion are unreasonable or can those reasons be supported on the
facts as by the trial judge?

[28]      In R. v. Sall (1990), 81 Nfld. &
P.E.I.R. 10, 54 C.C.C. (3d) 48 (Nfld. C.A.) Goodridge C.J.N. drew a distinction
between the functions of an appeal court judge with respect to primary facts
and inferential facts. He stated at 54:

It was not open to the appeal judge
to make a reassessment of the evidence and substitute his own findings of
primary facts (as distinguished from inferential facts) for those of the trial
judge. Once it appeared that there was evidence to support the expressed
conclusion of the trial judge, the appeal judge was powerless to interfere.

[29]      In R. v. Nickerson (1999), 178 N.S.R.
(2d) 189 (N.S. C.A.) Cromwell J.A. noted at ¶6:

Absent an error of law or a
miscarriage of justice, the test to be applied by the Summary Conviction Appeal
Court is whether the findings of the trial judge are unreasonable or cannot be
supported by the evidence.

As stated by the Supreme Court of
Canada in R. v. Burns, [1994] 1 S.C.R. 656, the appeal court is entitled
to review the evidence at trial, re-examine and reweigh it, but only for the
purpose of determining whether it is reasonably capable of supporting the trial
judge’s conclusions. If it is, the Summary Conviction Appeal Court is not
entitled to substitute its view of the evidence for that of the trial judge. In
short, a summary conviction appeal on the record is an appeal, it is neither a
simple review to determine whether there was some evidence to support the trial
judge’s conclusions nor a new trial on the transcript.

(B)       Unreasonable Verdict

[30]      The test to determine whether the verdict was
unreasonable and unsupportable by the evidence was set out in R. v. Corbett,
[1975] 2 S.C.R. 275, (1973)14 C.C.C. (2d) 385 at 389 and R. v. Yebes
[1987] 2 S.C.R. 168. The test was described as follows in Yebes at 430:

The court must determine on the
whole of the evidence whether the verdict is one that a properly instructed
jury, acting judicially, could reasonably have rendered. While the Court of
Appeal must not merely substitute its view for that of the jury, in order to
apply the test the court must re-examine and to some extent reweigh and
consider the effect of the evidence.

[31]      In R. v. Morrissey (1995), 22 O.R. (3d) 514,
97 C.C.C. (3d) 193 (Ont. C.A.), in discussing s. 686(1)(a)(i) Doherty J.A.,
stated at 220:

In considering the reasonableness
of the verdict pursuant to s. 686(1)(a)(i), this court must conduct its
own, albeit limited, review of the evidence adduced at trial: R. v. Burns,
, at pp. 198-9. This courts authority to declare a conviction
unreasonable or unsupported by the evidence does not depend upon the
demonstration of any errors in the proceedings below. The verdict is the error
where s. 686(1)(a)(i) is properly invoked. A misapprehension of the
evidence does not render a verdict unreasonable. Nor is a finding that the
judge misapprehended the evidence a condition precedent to finding that a
verdict is unreasonable.

[32]      An appellate court must use the following test in
reviewing a verdict for reasonableness: R. v. Biniaris, 2000 SCC 15, 1
S.C.R. 381 at ¶36:

Could a properly instructed jury, acting judicially, have reasonably
rendered the verdict?

[33]      "Acting judicially" means, in addition to
acting dispassionately, applying the law, and adjudicating on the basis of the
record alone, reaching a conclusion that does not conflict with the bulk of
judicial experience. The appeal court is to look through the lens of judicial
experience, importing its knowledge of the law and the expertise of the courts
gained through the judicial process over the years, not simply his or her own
personal experience and insight.

[34]      The test requires the appeal court, within the
limits of appellate disadvantage, to examine the weight of the evidence, rather
than its bare sufficiency. However, it is insufficient for the Court of Appeal
to refer to a vague unease, or a lingering doubt or a lurking doubt, based on
its own review of the evidence. These feelings may trigger a thorough appellate
scrutiny of the evidence. However, without further articulation of the basis
for such doubt or unease, these feelings will not justify interfering with the findings
of facts at trial: Biniaris at ¶36, 38.

[35]      When the Court of Appeal overturns a verdict for
unreasonableness, it must articulate as precisely as possible what features of
the case make the verdict unreasonable. For instance, the Court of Appeal will
be justified to intervene when the trial judge was not alive to an applicable
legal principle, or entered a verdict inconsistent with the factual conclusions
reached, or entered a verdict in conflict with the bulk of judicial experience:
Biniaris at ¶37, 40, 41.

[36]      Again, simply concluding that on the whole of the
evidence the conviction is unsafe will not form a proper basis for reversal.
When a judge gives detailed reasons for judgment, as in the case at bar, and
when the reasons reveal that he or she was alive to the recurrent problems of
this field of adjudication, the Court of Appeal brings no special insight to
the assessment of the evidence: Biniaris ¶37; R. v. G.(A), 2000
SCC 17, 1 S.C.R. 439 at ¶29.

[37]      An appellate court can find a verdict reasonable
even though the Crown’s case is not overwhelming. R. v. Lewis, [2003]
O.J. No. 4037 (Ont. C.A.) (QL) at ¶6.

[38]      In Fletcher v. Manitoba Public Insurance Co.,
[1990] 3 S.C.R. 191, Wilson J. stated at ¶26:

[A]ppellate courts should only
interfere where the trial judge has made a "palpable and overriding error
which affected his assessment of the facts". The very structure of our
judicial system requires this deference to the trier of fact. Substantial
resources are allocated to the process of adducing evidence at first instance
and we entrust the crucial task of sorting through and weighing that evidence
to the person best placed to accomplish it. As this court and the House of
Lords have repeatedly emphasized, it is the trial judge who is in the best
position to assess the credibility of testimony. An appellate court should not
depart from the trial judges conclusions concerning the evidence "merely
on the result of their own comparisons and criticisms of the witnesses".

(C)       A trial judge is presumed to know the law

[39]      A judge is presumed to know and properly apply the
law, and to have taken into account all aspects of all relevant evidence.
Hence, as a general proposition, succinct analysis or silence on a particular
issue is not an error in law. Where a comment is open to more than one
interpretation, the interpretation consistent with the judge’s presumed
knowledge of the law prevails. That presumption can only be displaced if an
error in law is manifest in the judge’s comments: R v. Burns, [1994] 1
S.C.R. 656, 89 C.C.C. (3d) 193 at 199-200; R. v. Wigman (1997),
96 B.C.A.C. 161 at ¶7; R. v. Manj, [1995] B.C.J. No. 1059
(B.C.C.A.)(QL) at ¶33, 37, 40, leave to appeal to SCC dismissed, [1995]
S.C.C.A. No. 373.

[40]      In Housen v. Nikolaisen, 2002 SCC 33, [2002]
2 S.C.R. 235, the comments of Iacobucci and Major JJ. at ¶22 and ¶24 are
apposite to some of the issues raised on this appeal:

[T]rial courts are in an
advantageous position when it comes to assessing and weighing vast quantities
of evidence. In making a factual inference, the trial judge must sift through
the relevant facts, decide on their weight, and draw a factual conclusion.
Thus, where evidence exists which supports this conclusion, interference with
this conclusion entails interference with the weight assigned by the trial
judge to the pieces of evidence.

[A]lthough the same high standard of deference applies to
the entire range of factual determinations made by the trial judge, where a
factual finding is grounded in an assessment of credibility of a witness, the
overwhelming advantage of the trial judge in this area must be acknowledged.


The statutory provision at issue here is
s.144(1)(b) of the Act. That section reads:

144  (1) A person must not drive a motor
vehicle on a highway


(b) without reasonable consideration for
other persons using the highway,

This particular portion of the Act has
not received a lot of judicial attention. That may be because the Act is
so full of other more specific offences that the authorities rarely feel it is
necessary or useful to make use of it. Nevertheless, s. 144(1)(b) remains
in the book and must be considered as an infraction separate and distinct from
the myriad other offences the Act describes.

The flaw in the appellant’s argument here is
that it is based on the assumption that one cannot be convicted of driving
“without reasonable consideration for other persons using the highway” unless
one can also on the same evidence be convicted of one or more other violations
of the Act. That position is wrong in law.

The true test of driving without reasonable
consideration was articulated by the Honorable Judge Hoy in R. v. Joe [1994]
B.C.J. No. 2017. There, the learned judge said:

20.       The
test, in my view, is contained in the words of the section itself. Thus, is the
driving done without consideration of the conditions and use of the roadway by
others, in such circumstances where a reasonably prudent driver ought to have
been aware of the potential dangers posed or created?

This test does not require that an accused
motorist be liable for one or more violations of the Act. It simply
requires that the evidence show that given the circumstances of the time and
place the accused, as a reasonably prudent driver, ought to have been aware
that his driving exposed other users of the highway to potential danger.

This is an objective test. Looking at the
evidence, it is clear that the appellant drove at speeds that were
significantly greater than the speed limit and at those speeds he brought his
truck into close proximity to the rear ends of vehicles operated by two other
users of the highway. He did this at night and in steady traffic. In my view, a
reasonably prudent driver under those circumstances would have appreciated that
by doing so he created a potential danger of a rear end collision should one of
the vehicles ahead be required to suddenly decelerate or stop. Given that
evidence I have no hesitation agreeing with the learned JJP that the appellant
drove without reasonable consideration of other users of the highway.


The appeal must be dismissed.

“P.J. Rogers J.”
The Honourable Mr. Justice Rogers