Judge: PIB road still 'public'

A roadway on private property on a First Nations reserve is still considered a “public place” if used by residents, according to a Penticton judge.

Darryn Allen Nelson was caught driving a motorcycle on Marron Valley Road through the PIB reserve in May 2017, against court order banning him from operating a motor vehicle on “any street, road, highway or other public place”.

He argued at a hearing earlier this summer that Marron Valley Road — which is primarily on private property held by a PIB member — is not a “public place” and outside the reach of the prohibition.

In a written judgement posted online this week Judge Gregory Koturbash disagreed.

“In the case at hand, the evidence clearly establishes that both reserve and non-reserve residents use Marron Valley Road with some regularity. The road is maintained by Argo Road Maintenance, has the usual signage of a public road, and connects Highway 3A and Green Mountain Road. Non-reserve people live along the road and use it to travel to and from their homes,” Koturbash wrote. “Marron Valley Road is a public place.”

“Even if only residents living on the reserve used the road, I still would have reached the same conclusion,” he continued. “The term public can and does include a limited group of people like reserve residents.”

Korturbash also dismissed Nelson’s secondary argument that he was not aware the road was a public space, ruling that being mistaken of the facts of a law is not a defence to a crime.

Nelson will be sentenced later this month.

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