BC Courts; burden of proof low and getting lower.

Yesterday I lost my bid in Supreme Court to appeal a traffic ticket for unnecessary noise while riding my motorcycle for which I was convicted several months ago. For all of us who've had their ears pierced by loud motorcycles, that news at first, may appear to be great news. However to me there are some disturbing issues surrounding my case. The first is that I believe I am not guilty, and the second which is probably an even bigger issue than the first is that the burden of proof in my case was far too low.

Justice and fairness are becoming more and more mutually exclusive. A tilting of the scales unfairly on the side of police is never a good thing; especially when BC is on the verge of implementing OSMV (Office of the Superintendent of Motor Vehicles) appointed arbitrators to replace the courts for traffic ticket disputes. In the last few years, police in BC have been given incredible power, culminating with their authority (and obligation) to seize motor vehicles for the charge of  an offence such as excessive speed which is defined in the MVA as 40 kph over the posted speed limit (limits which most drivers on many BC highways indicate with their right feet they cannot comply with). A police officer now, more than ever, can ruin your life on a simple charge (not a conviction). He (or she) can say what he wants.  He or she can do it simply because the motivation is, shall we say, less than pure... and there is virtually not a damn thing you can do about it. It is your word against theirs.

Many people are surprised to learn that, with respect to speeding infractions, police don't need to provide any empirical or objective evidence to support a charge. All they need to do is say that you were speeding and that they made a visual speed estimate; and the courts are accepting this to convict drivers. This being the case, it kind of begs the question why we spend all this money to equip police with equipment to measure evidence.

Just over a year ago, I was driving a lone vehicle on Hwy 99, heading into Whistler Village late at night in a 60 kph zone when an RCMP cruiser rounded a corner 200 meters in front of me in the pitch black. The emergency lights went on before she passed me and she made a U turn to pull me over before I had even completed the 200 meters. It was obvious to me she was on a fishing trip, as she asked me if I'd been drinking (I found out she is a member of Alexa's Team which gets recognized for their efforts in collaring drunks). Then, satisfied that I was not impaired, she produced a ticket for 80 k in a 60 k zone and told me she was citing me for speeding. When I asked her for corroborative proof of her charge (I knew she didn't have it because I was not speeding), she told me, no surprise, there was none. Funny that she had no objective evidence, as nearly all RCMP cruisers are equipped with RADAR; but I digress and the subject of why we supply police with expensive evidence gathering equipment if it's now not necessary is a subject for another blog post. I then expressed my surprise that she would be able to produce an accurate visual speed estimate for a vehicle directly approaching her in the pitch black.

She (RCMP accuser) was a no show when I went to court, which ironically the presiding JP was the same one who convicted me for unnecessary noise. I had my defense ready, however I knew going into it there was a better than 50 per cent chance she would be successful in making the charge stick as the burden of proof required by BC courts these days has been getting lower and lower.

So back to my case which you can read about in my blog Motorcycle Noise: Never let the facts get in the way of a good story (containing links to The Province story and editorial). I was virtually idling down Beach Avenue on a sunny fall day in 2009, when a motorcycle cop did a u-turn, followed me, apprehended me and then refused to tell me why he had stopped me. It was only after he'd got off his motorcycle, walked around the other side of my bike and remarked at the make of my exhaust that he told me he was going to test my pipes. Subsequently, he asked me to rev my bike roughly 30% louder than anything he had previously heard from me for an "objective" roadside noise test. The noise test was conducted while using a personal (and prohibited) noise meter while ignoring VPD published guidelines for testing.

Two courts have now confirmed that VPD Constable John Bercic's evidence was sufficient to levy a fine and penalty points under S 7a.01 of the MVA.  His evidence, the courts convicted me with, consisted of the following statement: "... my attention was drawn to a loud exhaust noise..." and "... it sounded at least twice as loud as a stock exhaust system."

That's it. Nothing else was required, according to a Provincial Court JP and a Supreme Court Justice.

But since the charge referred to the operation of the motor vehicle (and I had not made any noise to attract Bercic's attention) and not an equipment deficiency, I attempted FIVE TIMES to cross examine Bercic to get him to qualify his accusation to find out exactly what he thought he heard, but I was repeatedly shut down by Judicial Justice Lim, who told me it was not relevant.

To me, that a cop would charge and the courts convict on evidence like that, while preventing qualification through cross examination, is bad enough. But wait, there's more. Bercic swore other corroborative evidence (again you can read about it here) that was at best useless, but at worst misleading (to put it politely) which I had to put significant time and effort into refuting. The JP in his Reasons for Judgement, I think, recognized Bercic's bad evidence but rather than recognize him to be the lousy witness that he was, with by now questionable credibility, and take my and my witness's evidence to the contrary, Lim simply ignored it by saying it wasn't relevant and referred back to the original subjective observation about "loud exhaust noise".

So I'd shown Bercic to be a bad witness by refuting his objective evidence. I then swore my own evidence to the contrary and produced a witness (riding with me at the time) who corroborated my version of the facts that there was no vehicle operation to produce any noise.  Under these circumstances one might reasonably expect a dismissal of the charge. Yet I was convicted.

I know I am on the wrong side of public opinion where loud pipes are concerned. My dad (a retired lawyer) told me I was done the moment the court heard I had "Screamin' Eagle" pipes on my bike. However, let's not let biases get in the way of a fair trial. I believe JP Lim could not see the forest for the trees on this one. Before there was any decision from the Supreme Court, The Province editors got hold of this story and made me their poster boy for all that annoys them about loud pipes (all of it wrong about me). And, I am in a weird place because, oddly I don't like loud noise either. In fact I cringe when I hear it.

However, in BC the scales have been badly tipped in favour of police when it comes to evidence and this is not a good thing for either law enforcement or for those on the receiving end of police who abuse their power. This power and the abuses one might expect as a result will prove counter productive for all concerned.

Second Scooter / Motorcycle Parking Rally Set For Saturday May 5th

Initial program is successful (with some glitches). Riders want price adjustment and more free parking.

Newly designated scooter parking goes empty now
 there is a meter there where the current charge 
for metered space is the same as that for the SUV
in the next space (50% off if one uses pay
by phone).

Vancouver Scooter / Motorcycle Parking advocates will hold their second parking rally in Vancouver on the morning of Saturday May 5, 2012 as a follow up on a similar rally held in May 2010 which helped create parking for motorized two-wheelers on city streets. Supporters will descend on downtown, to park as they’ve been obligated, prior to recently, with one bike per vehicle parking space thereby displacing cars and trucks for approximately 2 hours.

The purpose of the rally is to inform and illustrate to citizens and city council, some of the challenges faced by riders of motorized cycles and to press for more available and free parking. While substantial progress has been achieved since 2010, previous city legislation generally mandated that powered two wheeled commuters occupy single vehicle metered parking spaces if riders wished to park on-street. In the past, riders have been reluctant to occupy entire vehicle parking spaces, considering it expensive, a poor use of space and discourteous to other motorists. Then, the alternative was to poach space, from automobiles, by parking between them. This could result in increased insurance costs for all motorists, due to damage as motorized cycles were knocked over, as well as punitive arbitrary ticketing and towing by Vancouver City.

Up to 8 motorized two wheelers will fit in a passenger vehicle
space.

Motorized cycle use in BC grew dramatically more than passenger vehicle use in BC (35% vs. 7.5% for the 5 yrs ending in 2007) and continues to grow as fuel costs rise and commuters seek alternative forms of transportation. Vancouver has 27,000 licensed scooters and motorcycles.

I told council in April 2010 the following: “City officials are doing a marvelous job with green initiatives in many ways including bicycle lanes. However there is a vacuum with respect to motorized cycles and if virtually everywhere else in the world can encourage alternative transport with scooters and motorcycles, then Vancouver can do it too. Motorized cycles are a necessary and integral component of any comprehensive transportation plan worldwide. It is because they are fuel efficient, produce less carbon, use less space, reduce congestion, transport more people and have low impact on infrastructure (because they are light) that many cities, including those close to Vancouver, have encouraged their use. Toronto offers free (and on sidewalk), San Francisco offers free and low cost ($.40 per hr) parking. Motorized scooters and cycles are part of the global transportation solution.

Hornby Street bicycle parking is well used....by motorcycles.

Whereas bicyclists tend to be users of transit, powered cycles divert commuters from automobiles. Therefore, powered cycle use should be encouraged if city officials wish to reduce auto use and promote more efficient movement of traffic in Vancouver. Further, unlike other modes of transit proposed by the city, since motorcycles are capable of speed, they do not slow the movement of traffic and they provide safety for commuters who are capable of maintaining traffic flow and range.”

Simple, right? Not by a long shot...

On October 6^th, 2009, and over five years after the BC Coalition of Motorcyclists (BCCOM) requested it, COPE Councilor David Cadman introduced a motion (drafted by me but with the exclusion of the paragraph for free parking) to designate low cost on-street parking for scooters and motorcycles at the far side of intersections (immediately after crosswalks) in space previously unused (and illegal to use at the time). However, the motion was diverted from discussion as the subject was instead referred to City Staff for review and recommendations. However, following the May 1, 2010 rally, motorcycle parking was once again on council’s agenda.

Unbelievably, at the council meeting held May 8, 2010, representatives from VEVA showed up to argue that gas powered motorcycles should be excluded from the motion and that free designated parking should only be granted to zero emission scooters. Stupid on their part, as I explained to council (and VEVA) that future riders of electric scooters and motorcycles would be the riders of today's gas powered vehicles and that first they should worry about the conversion to two wheels from four. We further extended that logic by explaining that as performance and range improved with electric two wheelers, riders would naturally convert as it made sense to do so. How did those zero emission dealers feel about screwing their future customers?

Several councillors refused to endorse the motion. Councillor Raymond Louie feels that it's his obligation to look after pedestrians and cyclists. I guess nobody that voted for him has any use for a car or a motorcycle? Councillor Jang really couldn't articulate what he thought, other than he likes cars and that one day everybody will be zero emission. The two meetings on May 6th, 2010 and May 18, 2010 where motorcycle parking was discussed, were like Monty Python skits and if you are bored, you can watch them on the council video archives. I suggest for a local and concentrated example of everything that is wrong with governments both big and small, that you sit back with a cocktail and watch this crew discuss motorcycle parking in Vancouver on May 18th and listen carefully to who said what before they took a vote. Council Agenda for Thursday May 18, 2010 

In an attempt to appease VEVA and satisfy some of their own ideology, council instructed engineering staff to create a complicated two tiered pricing system for motorcycle parking in the space I originally suggested; it was to be free for zero emission, full price metered for all others ( with a 50% discount offered for pay by phone). Bizarre pricing structure; uncompetitive, inconsistent, discriminatory, unfair, illogical, complicated, erroneous, difficult to enforce... blah blah blah.

However to give them credit, they considered it and they did something...which was considerably more than any previous council had done. For that, riders and commuters must be eternally grateful.


On May 19^th, 2010 I wrote to council to thank them for passing the motion while passing on to them the following comment that I had posted to motorcycle parking supporters:

“The good news is we have parking and Council has committed to a pricing review in a year. We will hold them to it. If nobody is utilizing their idea, or if single bikes are utilizing their metered stalls (utilizing the 50% discount thus losing the City revenue), perhaps they (Council) will be forced to behave like business people and adjust their pricing to align with reality.”

At the time of writing, Vancouver has designated approximately 200 spaces around the city that can each accommodate four to eight motorcycles. In discussions with engineering staff, there is agreement that the program is a success while pricing has not worked.

MCPARKING is suggesting more parking spaces to be allocated to encourage two wheeled transportation and that the spaces be designated free wherever possible on the basis that the space being designated does not now and never has produced revenue, and that progressive cities around the world promoting two wheeled transport offer free parking. In cases where free parking is not possible and demand regulation is necessary, then the city should offer pro-rated pricing. For example, if a vehicle space costing $4 per hour can accommodate up to eight motorcycles, then the parking should be metered at $.50 cents per hour. Further, we request that no other vehicles be displaced to accommodate motorcycles; in addition to the far side of intersections, that ample parking exist at the near side of intersections  which can now be designated for motorcycle parking. 

Summary:

Two wheeled transportation consumes less fuel, produces less carbon and reduces congestion and is therefore to be encouraged.

More parking is needed and to be accomplished while not displacing automobiles.

Motorcycle parking should be competitive and fairly priced.

We will hold a rally on May 5^th 2012 beginning at 7:45 am at the east parking lot of the Vancouver Aquatic Center to garner support for our cause. We would like to present our concerns to City Council shortly afterward.

www.mcparking.ca

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Twitter: @MCPARKING