Vancouver police officers who depend on their ears alone to bust noisy motorcyclists may find themselves spinning their wheels in court, B.C. lawyers and advocates say.
The force is using a five-year-old B.C. Supreme Court decision as justification for allowing officers to measure the sound generated by motorcycle engines and exhausts without relying on a decibel meter, according to a media release Thursday.
Sgt. Jason Robillard said officers can instead use “subjective observation” to hand-out $109 tickets to motorcyclists whose vehicles generate more than 91 decibels of sound — the level regulated by B.C.’s Motor Vehicle Act.
The court decision, R. vs. Tootill, dates to February 2012, after Ian Tootill was charged with generating “unnecessarily loud exhaust noise” from his “Screamin’ Eagle,” exhaust-equipped Harley Davidson while out for a cruise at Vancouver in 2009.
Tootill was pulled over by a constable familiar with the model, whose subjective observation that the Harley sounded “at least twice as loud as a stock-exhaust system” was objectively corroborated by his use of his decibel meter, according to Justice Miriam Gropper’s decision.
“I am satisfied the officer’s professional expertise gives him the ability to form that opinion. I am satisfied that subjectively this motorcycle was unnecessarily loud,” Gropper wrote.
But Daryl Brown, a motorcycle-accident lawyer based in Burnaby, said it’s important to note the unique expertise of that particular officer, who had previously worked in vehicle-inspection facilities, had experience riding a Harley Davidson and was “almost an expert” in court when testifying.
“I don’t think that any Vancouver police officer is going to be able to issue a ticket in the same way,” without the same credentials, Brown said. “I don’t think this is a catch-all.”
Brown said a motorcyclist could challenge a ticket based on objective, decibel-meter evidence anyway, because of a clause in the Motor Vehicle Act that says the 91-decibel limit is applied to an engine or exhaust “when tested in an inspection station.”
Vancouver criminal lawyer Paul Doroshenko said he’s never seen police proceed with a noise-related ticket. He believes that because people are often put-off by extreme, offensive motorcycle noise, the government needs to find a way to make related legislation work, such as an administrative scheme for punishment that would lead to a seizure rather than a violation ticket.
“There has to be some other method of doing this,” Doroshenko said. “They can’t make the charges stick because they can’t prove the noise unless they’ve basically got it on video and it’s over the top.”
Tootill, who is also co-founder of Sense B.C., a grassroots group advocating for motorists, said it’s “totally unfair” if Vancouver cops plan to charge motorcyclists under the same section of the Motor Vehicle Act he was — for driving “in a manner that causes loud and unnecessary noise from the exhaust system.”
Tootill said officers should be required to use an approved measuring device if they’re going to recommend charges. Tests should be conducted in controlled environments, where sound isn’t bouncing off walls or other objects, he said.
“The problem is if police are given broad powers to use their judgment, sometimes their judgment’s not terribly good,” he said. “It can be abused.”
Sgt. Lorne Lecker of Deas Island Traffic Service said B.C. Mounties rely on the same case law as other forces in the province and described Tootill’s case as critical.
“It didn’t change how we did business,” he said. “We’ve always gone on the subjective opinion that, ‘This motorcycle is too loud.’ But what it did was solidify that opinion.”
Wes Jamison of the Greater Vancouver Motorcycle Club said his group supports police efforts to control noise, but takes issue with the premise of police handing out tickets with no empirical evidence to prove noise level.
A motorcyclist who chooses to dispute a noise ticket in court might acquire a decibel meter and use it to prove in court their vehicle’s compliance with the Motor Vehicle Act, he said.
“If the cops have that discretion without the meter, just expect a court challenge from those people that like to have a little sound,” he said.
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