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.

Motorcycle Noise: Never let the facts get in the way of a good story.

Who doesn't hate noisy motorcycles? I know I do, especially when they are ridden strictly to get my audio attention.

The Province newspaper recently published a story and an editorial about my Supreme Court appearance for a conviction for unnecessary noise which I received in the fall of 2009 while riding my Harley Davidson V-Rod. By focusing on a cheap exploitation of widespread hatred of motorcyclists and noise, the editorial completely missed the point of my appeal, which is that I am not guilty as charged, believe I did not get a fair trial, and that cops should be held accountable when they provide misleading evidence. Further, demerit points have no place where the offence has nothing to do with risky driving.

But in the court of public opinion, that doesn't matter and the writer took advantage of widespread (and understandable) prejudice about motorcycles. If you see the rubbish that's being debated by the simpletons that are barking back and forth in the comments section under the original The Province article about my case, drawing specious conclusions about the size of my genitals, psychological shortfalls, motives for being an asshole etc.; you should be left with no doubt as to why it was so easy for this cop to pull off what he did to me, and what I know he did to other(s) as well. Shiny motorcycle = noise therefore harass and throw the book at him; and who cares whether he's guilty or not.

First off, I am not going to debate whether or not loud pipes save lives. Ironically, I happen to be one of those people that thinks that even ERTs should not be permitted to raise the racket they do with sirens (except under exceptional circumstances). However, if the perpetrators of ear splitting siren noise say it saves lives perhaps there is a safety argument. I'm not sure, but if you are one of those who back the ERTs when they say sirens are all about safety, then don't have a double standard and say that bikers who use it are full of it when they use it.

No question, noisy motorcyclists and drivers creating a din deserve tickets.

The Province claimed I installed pipes to make my motorcycle "as loud as possible". Actually, the pipes I purchased were some of the quietest aftermarket pipes (if you can call pipes made by the OEM "aftermarket") on the market. That's one of the reasons I chose them. Had I been cited for improper equipment and if they were illegal, I would have sucked it up and paid the fine. But I wasn't; so that is not, and never was the issue.

The issue is that VPD Cst. John Bercic made a vague subjective observation about my driving and arbitrarily pulled me over without cause. In fact, he could not (or would not) tell me why he'd apprehended me until he'd walked around my bike and had a close look at the make of the exhaust. He then created objective evidence himself by ordering me to rev up my bike to an engine speed he never heard prior to my apprehension, he used a non standard personal noise meter to measure it and further, he denied in court that there was VPD testing protocol which existed for the operation of noise meters. He submitted his useless evidence in court to corroborate his flimsy subjective observation in court which was simply "I heard a loud exhaust noise" and "it sounded twice as loud as a stock exhaust". That's it. Problem? I think so.

He wrote me up for MVA s. 7a.01 which is a subjective charge (with demerit points) that refers to noisy operation of a motor vehicle (basically behaving like the asshole that some on bikes can be) and not a charge which deals with noisy equipment. See the difference? The fact that ICBC and the OSMV have created offences in the Motor Vehicle Act which carry points (which should be there to assess at fault crash risk), but which have nothing to do with crash risk producing behaviour is an issue also. Police are constantly claiming they need more legislation (and power) so they can better protect us. Events like this unfortunately say to me they cannot be trusted with discretion.

When I tried to qualify the allegation in court by cross examining Bercic as to what the subjective evidence was that caused me to be pulled over, such as "...did I rev..?" (my engine), the JP (who had both a short attention span and a temper to go with it) shut me down. Judicial Justice Lim told me "those questions aren't relevent". However two trial days later (this little dispute took two years and four court appearances... five if I include Supreme Court... no wonder our justice system is broke), after I had shown Cst. Bercic's objective evidence to be useless (and in the process under normal circumstances shown the crown witness' credibility to be highly suspect), the JP threw most of it out and reverted back to the flimsy evidence that he refused to allow me to qualify. Problem? I think so....

Maybe to put this in a simple analogy so that people can understand: Cop pulls you over without reasonable cause and pulls out a breath tester that he ordered online and tells you to blow. Then he goes to court and submits that evidence to support your conviction for impaired driving. Problem? I think so.

Then he (Bercic) implied that not only was he doing everything to department standards, but that he has many years of experience and knowledge to back up his allegation. So the JP took his word for it. It took a subpoena for another professional VPD witness to prove he was bluffing (to put it politely). Problem? I think so.

Readers might be interested to know that Bercic has received a commendation from the Chief of the VPD for his techniques in gathering evidence "which have become departmental standards." Funny a cop whose techniques have become departmental standards, wouldn't know anything about a published noise testing procedure when asked in court about it. Problem? I'd say so.

The Province owes it to its readers (and themselves) to critique this stuff, which is calling into question whether there should be, or can be, any such thing as police discretion as we now debate appointed adjudicators by the OSMV to be used for traffic ticket disputes.

So I realize there is some validity to the expression "never let the facts get in the way of a good story" however it would benefit all of us if writers and editorialists would make it clear I am not one of those you see on bikes with straight pipes trying to make themselves known. Most importantly, they should let their readers know when unfair behaviour and / or deceit (particularly under oath) are perpetrated by people in uniform.
You can read The Province Blog: Loud pipes are just a blight on others