BC Sport Bikes Forum banner
1 - 20 of 34 Posts

·
Registered
Joined
·
311 Posts
Discussion Starter · #1 ·
Few people enjoy listening to loud bikes (not even me oddly) so one of the big reasons that I fought an uphill battle in Supreme court was prejudice against the proverbial loud Harley. Notwithstanding that fact, hopefully nobody advocates the practice of arbitrary charges and the creation of objective evidence that's not relevant to the charge.

Some of you have rightly observed I embarassed myself fighting the charge. I didn't fight the charge to save money, I fought it because I was charged for something I did not do (noisy operation) and the charge carries penalty points that I believe (and so should you) should be reserved for risk related vehicle operation. I did not get charged for loud pipes, rather noisy operation... there's a difference. For the record, I don't care about the money. It cost me a hell of a lot more than the fine to fight the charge.

I called the media because I felt the subject of OSMV appointed adjudicators, which are about to replace our traffic courts for disputes, should be questioned, particularly in light of the fact that police officers are today more than ever in a position of power with low burden of proof for evidence in justifying charges under the motor vehicle act. This cop, who's received a Chief's commendation for evidence gathering, who knew better ... corroborated his flimsy subjective evidence with useless and misleading objective evidence that he created. It took an immense amount of work to expose him.

Silly me, I miscalculated and thought the media might be interested in rogue cops, especially if we are about to eliminate traffic courts and become even more reliant on police integrity.

However, unfortunately the reporter sent to cover the story was not a court reporter and initially required a review in how Supreme Court worked (five minutes before my court appearance). So a weak story emerged online two hours later that completely missed the point. Subsequently, one of the senior editors at The Province, who has a hate on for loud bikes, saw the story, made some assumptions and voila ... I became the poster boy for the two days of editorials and letters that ensued.

For those of you that think I should have been swift enough to control what the reporter scribbled or wrote.... sorry I am just not that good.

Adele at BCCOM is right, I don't do things to save my ass, I do them because they are the right thing to do. Correct it the first time properly, and nobody has to deal with it afterward. If everybody did just that, we would not have to deal with the terrible legislation that Victoria now heaps upon us ... which they know they can do because people take the easier route more often than not.

Thanks Adele, for standing up for riders, what's right, and for putting a good word in for me.

By the way, if you are naive enough to believe everything you read in the tabloid media or that interviewees have any control over what reporters write or editors produce, you need to go back to school.

For anyone interested, I've published a follow up to the Supreme Court dismissal here .
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #55 ·
Yes, the pipes were not stock, they were Screamin' Eagle and the bike was a V-Rod. If you know the pipes and the bike, you know the pipes are not Vance and Hines and the bike (water cooled Porsche design) is quieter than the proverbial air cooled HD knucklehead. Yes, you can ride the bike without pissing people off.

A couple of you made comments to suggest that I deserved the ticket just because I had pipes that weren't stock. Plain stupid. Let me see if I understand this... you think that it's ok to issue penalty points (meant to allow the OSMV to prevent risky drivers from driving) for the act of installing aftermarket pipes? Is that what you are saying?

The issue, which some of you are oblivious to, is the burden of proof is too low for law enforcement, which has too much power and they can ruin your weekend (or your life). In my book, if you get a ticket ... you don't deserve it, you fight it... and if you're going to fight it, you do it right ... end of story. That's what I did. All the way to the top.

You win some you lose some. I've won before, and it's satisfying, but I lost this time. Bad issue for sure and certainly not something one wants to be made public when trying to push for more bike parking. For that, I sincerely apologize to the supporters of the motorcycle parking work.

If some of you would devote half as much time as you do trolling and bashing, to standing up for yourselves and other bikers as you do behind the screen, we might have a Province which was not being bullied by the pussies that it is right now.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #58 ·
"You guys are all high and mighty, but just wait until you're on the receiving end of a cop playing judge, jury and executioner. It happens with our impound laws right now. I once had a cop stop us when we were on a leisurely ride and threatened to impound my bike because he "knew" the exhaust was too loud. No proof, just some grumpy bastard thinking his ears were tuned to hear 91 db perfectly. "

You hit the nail on the head. Police in BC have way too much power and the courts are already accepting subjective speeding evidence without any objective corroborative 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. 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.

The courts now are accepting this evidence. Police officers are obligated to seize vehicles on a "charge" of excessive speed and the OSMV can now seize vehicles and sell them at auction without the owner ever receiving a criminal conviction.

Get your collective heads out of the sand. Have a nice day.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #85 · (Edited)
Analogy

Smoke a little weed once in awhile? Some of you must be under the influence while posting to this thread, given the bizarre lack of logic and obvious short attention spans... however I doubt it or you'd likely be a little happier. LOL

Anyway, I digress.What if you happened to be walking down the road with a joint in your pocket and a cop apprehends you simply because you look like a doper. He at first refuses to tell you why he apprehends you but he demands a search, finds the joint and says he's going to weigh it. He pulls out his corner store bought digital scale and tells you your joint weighs a pound and he's going to up your charge from simple possession to smoking it; and let's say for purposes of this discussion it carries a more serious punishment.

Do you roll over and take it simply because you were carrying a joint and marijuana is illegal, or do you instruct your defense lawyer to fight? So then you go to court and the cop testifies under oath that he had reasonable cause to apprehend and search you because he witnessed you smoking it and he believed you were impaired.

He also testifies under oath that all of his apprehension and evidence gathering techniques were by the book and his (mail order) digital scale produces accurate weights. You tell the court he lied and that he never saw you smoke dope. You produce a witness who corroborates your side of things. You subpoena an expert witness (another cop) who says that your accusers scale is not the same scale the police department uses, which he is prohibited from using, and besides, for more serious convictions there is an evidence gathering procedure to follow.

So you prove the cop didn't follow procedure for evidence gathering and you show him to be an untrustworthy witness. You deny that you were smoking dope, but don't deny you had the joint. You have a witness (who was there) who backs you up. But the court throws out all the damning testimony about the cop's integrity and his objective evidence gathering and convicts you anyway? Good with you? Really?

I have to laugh when I see people who say they've never received an inappropriate charge or been victimized by law enforcement in some way. If you are one of those you clearly need to get out a little more often.

It's just plain stupid to give law enforcement the power they have today AND accept the low burden of proof that the courts do.

Update: Another analogy from the "Tootill has lost and I am happy" thread.

He (Bercic) created objective evidence with useless prohibited equipment. He did not use testing procedure (measure the distance from pipes, near concrete etc.) then he told the court that basically it didn't matter because he's the expert with experience. And the court took his word.

How would you feel if you got pulled over and were told to take a swig of booze just before the cop pulled out a store bought breathylizer and showed up in court to convict you on that basis? What if he told the court that his breathylizer was calibrated but neglected to add the caveat that it is a different class of equipment than the department gave him for evidence gathering and that in fact he was explicity told not to use it?

As I have said all along though, I would have taken a ticket for noisy pipes any day if the test was truly objective.

Bercic had over half a dozen options under the motor vehicle act that he could have used to charge me and he had Vancouver Bylaws he could use but he chose the only charge with penalty points just to inflict maximum damage to somebody who did nothing to provoke him.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #95 ·
"Am I missing something?" No kidding, you're just missing the entire thing! Some of you guys come across as dumb as a sack of rocks. He ADMITS he had loud pipes. What is it about you guys who don't get that? The lawsuit was about ARBITRARY noise measurement, not loud pipes. Sheesh! You guys seem to be smart enough to ride motorcycles, so what's causing the huge brain farts over what the legal issue is? I suspect that some of you are law enforcement types who just want to use this forum lecture riders about pipes and helmets, which is why you're coming across so retarded about the legal issues.
At least he admits he just quickly read the post and didn't read the blog. This is definitely short attention span theater here.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #106 · (Edited)
While you're at it though how about answering the other questions direct to you in this thread.
Only one question that's not answered in my post or the two articles I penned in my blog ... "Did I consult a lawyer?" The answer is yes, and of course several cops that I know.

When photo radar was first announced, we had a tough time even getting in front of the editorial boards of the newspapers and the so-called "stakeholders" to discuss what was wrong with it; mostly because people just couldn't leave behind their predjudices about speeding and everyone had been subjected to and brainwashed by the millions of dollars of "speed is killing us" adverts for over a year at the time. It was only after the program was implemented that the phone calls of support started to arrive from indignant people, some of whom initially thought the program was a good idea, realized that they too were targeted unfairly and that the program had some problems.

I get that people don't like loud pipes. I didn't install them to annoy myself or anybody else. I installed them because they were cosmetically pleasing, enhanced performance, had a good note and were one of the quietest aftermarket pipes available. Screamin' Eagle pipes are an OEM pipe and they were at times, installed on some production models of V-Rods. They could be operated quietly at normally operating speeds.

If you think the simple act of installing them on your bike deserves a ticket then we don't have much to discuss. However, and I am repeating myself, there is a ticket for that, but that's not what I got (READ the two blog articles or don't ask stupid questions).

If you think it's ok for cops do go on fishing expeditions and make up evidence, and say that I need a reality check because I don't think it's ok .... well then again there's not much to discuss.

I am not looking for anybody's support here.
I have read every one of the comments and it's all been very interesting.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #117 · (Edited)
Maybe you got a bum rap for being ticketed incorrectly. And you didn't install to annoy anyone. But excessively loud pipes ARE extremely annoying to the general public. Guys are running completely open pipes. City or not, it's way too loud. You can't cause that kind of social disturbance anywhere, anyhow, legally or not and expect support in any shape or form. Maybe your pipes are quiet, aftermarkets but there is so much anger from those opposing such blatant, inconsiderate behavior, you get thrown in with the crowd.
Uh, that's painfully obvious.

What fight do you want? Appeal the 40 over impound? Standing on foot pegs? As motorcyclists can you not understand that is not all about your personal issue? Is it that at some point you are going to be going so fast you kill yourself or someone else? WTH? I don't get it, perhaps you to need to think seriously about motorcycling in this province. Alone you do not have a chance, better learn to accept the BIG picture only way to survive. United we stand divided we fall....
Well said Adele. One has to laugh at all the lone rangers, indignant when they get a ticket they don't deserve, who are dumbfounded when they roll up in court for a one off fight, like lambs off to a slaughter, when they get steamrolled as the cops and judiciary collude to put them out of business. It's only happened in the last few years because the only thing that seems to get these apathetic clowns motivated is a hockey game. The average person has the attention span of a gnat and is ignorant about the stuff Victoria has done, and is both considering and planning for the future.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #130 ·
I have read through the brief, and still don't see what the issue is. Yes, the officer chose to ticket you under 7A.01, which is a subjective evaluation. You were not ticketed because you installed an aftermarket exhaust system, but because the officer claims to have heard a "loud exhaust sound" that was "twice as loud as stock". He then corroborated his judgement call with a SPL measurement (albeit with non-standard equipment) and by the fact that your bike had aftermarket pipes on, hence the bike would be likely to generate higher than stock exhaust noise levels.

Under the regulation, all he needs to hear is "loud and unnecessary noise". Now, do I necessarily agree with the regulation? No - I think it is too vague and gives too much lee-way for abuse. Do I think there's a systematic abuse in the courts? No. Do I think it gets abused by the occasional power-tripping cop? Probably.

However, your challenge did not deal with the fact that the regulation was "unconstitutional" ("uncharterable" in Canada?). I don't see how this fighting of the ticket reflects on the larger issue at hand?

And for the "united we stand, divided we fall" comment, that's similar to a characteristics of unions that always bothered me - where the entire union goes to the defence of a worker that should rightly be dismissed, purely because s/he's part of the union. Sorry, not interested.
Somebody raise the flag ... finally a challenge to the debate with some logic and reason. For the sake of time, here's a post from the "Tootill has lost..." thread that I just posted.

"Read S 7a.01 It's a section of the MVA designed for operator misbehaviour. Ride or drive like an asshole and you get a ticket under this section of the act which includes fines and penalty points. Drivers who squeal tires, honk horns incessantly, red line their bikes, donuts whatever. It's what the section of the act was designed for. It requires a subjective observation but in those cases, easily quantifiable and identifiable. You know, I heard a bike which was very loud, I looked up and saw a guy dressed in such and such, accelerating rapidly, two car alarms went off and at least one pedestrian turned to notice the bike.

Bercic saw and heard none of that from me. He offered hardly any subjective evidence in court, other than to say he heard a loud exhaust that sounded twice as loud as stock. And I was prevented 5 times from asking for it (quantified evidence) by a JP who clearly did not get it.

This is what Bercic's colleague Barker offered under cross examination, "Again, we're again, we're talking so, Your Worship, I guess what I'd like say to the court is that there's a difference between 7A.01 and what would be in Division 7. Division 7, if you were in violation of something under Division 7, you would be charged under 219, which is vehicle not properly equipped. Any violation, it doesn't matter whether it's lights or brakes, if there's not a specific charging section in the Motor Vehicle Act Regulations, then you would fall back on 219 which is vehicle not properly equipped. So any if you were to issue a ticket for that specific section and we don't we don't recommend that. We we suggest that members issue notice and orders for those violations, then the appropriate charging section would be 219."

Bercic's commanding officer said the same thing in a letter I submitted to the court (and I am paraphrasing because I don't have the letter in front of me)... that where exhaust modifications cause noise, that an objective test be ordered and a charge laid under S 219. And further, he said, that objective test be done with a department issued meter or in a controlled testing station. And that "members are advised not to use personal testing meters" to gather evidence.

219 .... no problem, I'll take it if I deserve it.... but then don't be using your store bought meter to issue the charge either.

As I have said, Bercic went on a fishing trip. He used his prohibited personal advice to corroborate subjective evidence that I contended he did not have. He spent one third of his testimony on the subjective part and two thirds on the objective part. He said there was no testing standard when I asked. The JP allowed it, but when I produced a professional witness to show he was bullshitting, the JP simply tossed all the objective evidence and referred to the subjective. By then the JP got it, but he wasn't about to let me off the hook and it's now easy to see why.

Does this all sound too much like legal mumbo jumbo for you? Think the end justifies the means? I hope not, but it sounds like it."

KIVYEE you are right about the unconstitutional possibility and I was actually advised by one lawyer to go that route, however I did not want to be in a position in traffic court, where the objection was raised and it was then referred to Provincial Court for constitutional challenge. At that point, things would have begun to get very expensive. I thought the burden of proof should be higher and I thought that once Bercic was shown to be the bad witness he was, that I would get an understanding JP who would accept both my evidence to the contrary and my witnesses'.

While the post to the Supreme Court decision link provides some info, it does not help that much. Supreme court is not interested in examining evidence or JPs' decisions, it is interested in errors in law and procedural errors.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #132 ·
7A.01 No person shall start, drive, turn or stop any motor vehicle, or accelerate the vehicle engine while the vehicle is stationary, in a manner which causes any loud and unnecessary noise in or from the engine, exhaust system or the braking system, or from the contact of the tires with the roadway

correct me if I'm wrong, but I thought passengers cannot be witnesses due to bias? If so, you had a police officer who rides harleys saying you caused excessive noise, vs your word, witness excluded, and the motorcycle you were riding has pipes listed as "screaming eagles" that are aftermarket pipes.

Not trying to be argumentative here, but if this is what it came down to I'd understand why you couldn't get the charge dismissed. If the judges cannot rely on the sworn word of the police officers in what is deemed to be a subjective assessment, then what else can they go on? In your blog post you linked in the first post, you accused the officer of having motive to charge you, did you flip him off, or get into an argument with him?

Please note, now I'm curious because I don't think we're getting the full story and I still don't see cause to challenge this. The whole transcript would have been...tasty.
There is nothing preventing anybody from being a witness ... yet.
Screamin' Eagle are HD OEM pipes.
There was no interaction between me and Bercic until he pulled me over. However, who knows, maybe he thinks he's seen me somewhere before. It's possible. As I have said all along, I did nothing to attract his attention. I think you are right, that judges should (to a degree) rely on cops' word for subjective charges but I do not agree that in this instance the burden of proof was / is high enough. In any case, the problem is that police don't always tell the truth and when you reduce a burden of proof to almost nothing, you run the risk that more police are tempted to not tell the truth.

In this case, I showed his objective evidence to be substantially bullshit. In my view, this should have reduced his credibility and allowed my testimony some priority. Certainly when another witness (who was there) corroborates my story.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #142 ·
Your quote, my bold re rogue.

During your cross examination did you try any of the cracks about short attention span theater, ignorance of the rest of the people in the room who didn't agree with you?

Maybe snide commentary is what scuppered the case.
Nothing about Barker there.

And no.

Next....
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #156 ·
You're reading that section a lot differently than I am. I read it as it covering loud noise coming from the bike any time it's on, no matter how it's being revved or ridden. Maybe I'm wrong, but I'm interpreting that as a "cover any scenario where someone is making too much noise"
Here is the explanation from the VPD Insp responsible for Traffic:

"Where the noise being emitted is due to the actions of the driver, such as revving the engine or using the engine brake, members should consider laying a charge under the appropriate MVA Reg or Vancouver Bylaw:

MVAR 7a.01
Vcr Bylaw 9344 2.1
Vcr Bylaw 9344 2.6

Where noise is due to an equipment modification or deficiency, members can consider proceeding by violation ticket or by Notice and Order.
Members who wish to proceed by violation ticket for an exhaust violation may consider the following sections when proceeding:

MVAR 7.03(1)
MVAR 7.03(2)
MVAR 7.03(3)
MVAR 7.03(4)
MVAR 7.03(5)
MVA 219

If the vehicle is equipped with a muffler which in the opinion of the officer produces an exhaust noise that is louder than a similar motorcycle in good condition and of comparable size, horsepower or displacement members may issue a Notice and Order.

Members conducting inspections using a sound level meter must use the adopted stationary sound level test when determining if a vehicle meets the maximum allowable sound pressure level referenced in the Division 7 of the MVAR."

The Inspector also says that "Members are advised not to use other than Department issued equipment."

Note that 7a.01 is also the only section that if charged with it, results in penalty points.

Note that Bercic used other than department issued equipment.

Note that Bercic said when asked about a testing procedure, he told the court, under oath "No, I don't know what you're talking about." And when he was asked about specific circumstances which are outlined in the testing procedure that would affect testing accuracy, he referred back to his experience and said "I've never found that to make any fluctuation in the measurement at all."
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #157 ·
The O.P. got a bad rap on this one.

Cop was incompetent or just plain lazy. The first judge misunderstood the reg's, or is in collusion.
Thanks. I think you are being far too lenient. He's received a commendation from the chief for his work in pursuing noise prosecution. He knew very well what he did.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #158 ·
There's only two officers involved in your trial, and you are quoted that you thought the media would be interested in rogue cops.

So, either your making up this scenario of rogue cops in your story to feed the media, or you're stating that these two officers are rogue. Which one is it? That statement is not clear!
Here's the defn of Rogue: Surely you can figure it out.

Rogue defn: no longer obedient, belonging, or accepted and hence not controllable or answerable; deviating, renegade: a rogue cop; a rogue union local.
 

·
Registered
Joined
·
311 Posts
Discussion Starter · #159 ·
Okay I have now taken the time to read this thread. With what the specific charge was and how it was handled then I have to agree with you. It isn't right to have such vague laws enforceable in this manner.

Having said that, in my opinion this is a big fight that you've decided to take on. I commend you for trying because this isn't something I would ever think of. Your lawyers should have warned you before taking this on that you were essentially going in with a knife to a gun fight. Your odds of success were slim to none. I'm actually surprised you found lawyers to take on your case. You seem to have a very condescending and generally poor attitude towards others. Between your choice of tone while speaking with others and choice of representation you never had a chance.

Good luck
I consulted lawyers but I did not have lawyers represent me, as I would not in most cases defending myself in traffic court. In hindsight, had I used a lawyer I likely would have won. Initially I was not prepared to pay the $7 to $10k to pursue this and I underestimated the amount of work required to beat this.
In terms of my demeanor, I think if you look at the bashing and rudeness directed at me by people who obviously did not look before they leaped, in previous threads as well as this one ... perhaps you may wonder why I am so polite.
 
1 - 20 of 34 Posts
This is an older thread, you may not receive a response, and could be reviving an old thread. Please consider creating a new thread.
Top