Thursday, June 7, 2012

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

17 comments:

  1. Wow! Two sides to every story. Had I not read this I would have thought entirely differently. Good for you for standing up for yourself.

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  2. Chad, the fine was $109. I would have no issue with the fine. I do have an issue with penalty points (3) which are reviewed by the OSMV in determining driver risk and whether a license suspension is warranted. Additionally, ICBC would love to be able to charge higher insurance premiums to drivers with demerit points. That is the issue here; the unsuitability of the application in this case. If anything, if the bike was too loud, which Bercic really never provided any proof that it was ... other than with his "personal" sound meter and by providing heresay from a witness by asking whether he had ever seen a Screamin' Eagle pipe which was not too loud, then there should have been a notice and order to test the bike and a fine if the bike was in fact too loud.

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  3. P.S. I have regularly provided editorial and news content to The Province for many years. So not only was the focus on me misleading and damaging to the cause (motorcycle parking) but it is a strategic mistake for the publisher to allow an editor with a chip on his shoulder to hijack the story and wreak havoc without considering what the outcome might be. You can bet that there is a lack of trust as a result of it.

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  4. So let me try to understand this.
    The policeman told you to rev your engine so that it produced a sound which entered the range of noise which might be in violation of a noise limit set in some legislation somewhere?

    If he had told you to drive the motorcycle at a speed which exceeded the speed limit set for the road you were on, would you have complied with that instruction?

    The point I am making is that once he told you to rev the engine you should have turned the key off, if the engine was running, and politely told the fellow that you would not want to operate the vehicle in any manner which could be deemed illegal and then thanked him for his concern.

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  5. I have to agree with you. You, unfortunately are not alone in this type of happening. Commercial Truck drivers put up with this sort of bias on a daily basis. To give you an example, being stopped at a road side inspection, with a small chip in the lower right hand corner of the windscreen. The officer giving a fine for a safety infraction, and the vehicle being put "out of service", until such repairs are made to return it to road worthiness. We as a society, want our roads to be safer, I don't think anyone would argue that point, but let's get realistic, and put some factual guidelines for this safety. Not just a person's subjective opinion.

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  6. Brian: Good point, however it never occurred to me not to comply as naively it turns out, I believed I would pass the test. I did nothing wrong prior to the apprehension and he would not tell me I had done anything wrong. To the latter point, I don't think there is a problem allowing subjective evidence however there should be some fair guidelines about how it is applied and certainly a Justice of the Peace should not prevent a witness or defendent from asking for qualification of subjective evidence. These days more and more, JPs are allowing subjective and visual observations from officers who show themselves unfit to be providing it. One has to ask the question as to why, if it is sufficient just to provide a visual speed estimate that an officer corroborate his estimate with an empirical measurement from LASER or LIDAR (department issued, approved and calibrated by the way...)? Why bother going to the expense to buy the tools if there is no need to use them? Hell why even bother with court if some bad tempered JP is simply going to rubber stamp defacto convictions?

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    Replies
    1. The 'administrative' application of justice is a trend which must be stopped. Recent DUI levels with immediate and expensive repercussions without benefit of trial are another slide along the slippery slope.

      We, within the trucking industry, are routinely subject to inspections, costs and delays imposed by unqualified civil servants. On more than a few occasions I have had trucks stopped for hours, and even towed, based upon an inspectors mistaken impressions. (ie. The mechanic who was ultimately trying to repair the alleged brake problem which caused the vehicle to be towed, could find nothing wrong and noted in his report that everything was well within specifications. The response I got back from the Commercial Vehicle Inspection Branch was, "Oh well, that's the way it goes.")

      There are no repercussions suffered by the bureaucracy. They are well insulated from reality.

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    2. No argument from me on this. As you may or may not know, one of my projects is the citizens' motorist advocacy group called SENSE (www.sense.bc.ca) of which I am a co-founder. The BC Liberals have lost their way as they repeat, and even enhance, the same poor choices made by the NDP when they were in power prior to 2001. One of the chief problems, I believe, is that senior civil servants wield far too much power and are not presented with enough critical discourse from MLAs who don't seem to have the attention span or the knowledge to properly represent their portfolios. Shirley Bond obviously has no business being Minister of Public Safety but then who else will do the job? They've fired Kash Heed, they lynched Jon van Dongen, Mike de Jong...well, what can I say? Barry Penner is moving on ... Rich Coleman anyone?

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  7. Update:
    I learned today that my appeal has been dismissed. Reasons for Judgement can be read here. http://www.courts.gov.bc.ca/jdb-txt/SC/12/10/2012BCSC1015.htm

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    Replies
    1. "At least twice as loud"? So the *occifer* is claiming that he can accurately perceive a change of about 3 decibels? Really? I'd pursue him proving that he can actually make such an assessment with ANY reasonable accuracy, especially when dealing with the uncertainty of how various frequencies propagate and are attenuated by the environment as they travel 100m to his ears.

      If they want to go after motor vehicles for unnecessary noise, they should fine and force refitting of every single vehicle that some 20-something white kid has had a shop install a big chromed fart-can on. There are a few dozen in my neighbourhood, and they apparently enjoy going out for joy-rides at 2 o'clock in the morning.

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    2. "I'd pursue him proving that he can actually make such an assessment with ANY reasonable accuracy, especially when dealing with the uncertainty of how various frequencies propagate and are attenuated by the environment as they travel 100m to his ears."
      That is an excellent point that I had not considered. However with the type of "justice" I received in this particular traffic court, it likely would have been an argument that would have fallen on deaf ears. The JP clearly did not care how bad the prosecution's witness was.

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