R. v. Almardy, 2018 BCPC 298

Citation: R. v. Almardy 2018 BCPC 298 Date: 20181128 File No: AH63440863-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. KHALID ALMARDY REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H W GORDON Appearing for the Crown: Cst. Christians Counsel for the Defendant: Paul Doroshenko, Q.C. Place of Hearing: Victoria , B.C. Date of Hearing: July 24, 2018 Date of Judgment: November 28, 2018

Introduction [ 1 ] Mr. Almardy is charged with three offences under the Motor Vehicle Act : two offences of driving contrary to a restriction on his licence as a Class 7 novice driver under section 25(15) of the Act and one offence of failing to display an “N” on the rear of his vehicle under

section 30.10(4) of the Motor Vehicle Act Regulations . [ 2 ] The two restrictions were a requirement to have a qualified supervisor in the vehicle when carrying more than one passenger and a prohibition from having alcohol in his body while operating a motor vehicle. Legislation [ 3 ] Section 25(15) of the Motor Vehicle Act provides:

(15) A person who violates a requirement, restriction or condition prescribed under this

section in respect of the person's driver's licence or who violates a restriction or condition stated in, endorsed on or attached to a driver's licence issued to the person under this

section commits an offence. [ 4 ] Sections 30.071(1) and (2), 30.10(4) and 30.11 of the Motor Vehicle Act Regulations provided at the time of the alleged offences: Accompanying adult conditions and passenger restrictions for Class 7 licence 30.071

(1) Subject to subsection (2), a person to whom a Class 7 licence is issued on or after October 6, 2003 must not carry more than one passenger while operating a motor vehicle of a category designated in

section 30.01 (2) for that class of driver’s licence unless the person is accompanied by another person who (

a) is at least 25 years of age or is a licensed driver training instructor engaged in providing practical driver training to the person in accordance with Division 27, (

b) holds a valid and subsisting driver’s licence, other than a learner’s licence or a Class 7 licence, of a class that permits him or her to operate a motor vehicle of that category, and (

c) occupies (

i) the seat beside the operator, or (ii) the seat or area immediately behind and to the right of the operator, in the case of a motor vehicle of the category designated for the class of licence issued in which there is no seat beside the operator. (2) Subsection (1) does not apply to a passenger who is an immediate family member of the person. 30.10

(4) Subject to the exception set out in subsection (5), a person to whom a Class 7 or 8 licence is issued must not operate a motor vehicle of a category designated in

section 30.01 (2) for that class of driver's licence unless a new driver sign depicting the letter "N" is clearly visible and prominently displayed from the rear of the motor vehicle or trailer, as the case may be. No-alcohol restriction for Class 7L, 8L, 7 and 8 licences 30.11

(1) A person who holds a Class 7L, 8L, 7 or 8 licence must not operate a motor vehicle while having alcohol in his or her body.

(2) For the purposes of

section 90.3 of the Act, the following devices are prescribed: (

a) the Alcolmeter S-L2; (

b) the Alcotest ® 7410 GLC; (

c) the Alcotest ® 7410 PA3; (c.1) the Alco-Sensor FST; (

d) the Alco-Sensor IV D WF; (

e) the Alco-Sensor IV PWF; (

f) the Alco-Sûr; (

g) the Intoxilyzer 400D. Evidence [ 5 ] Only the issuing officer, Cst. Christians, gave evidence. [ 6 ] He is an officer on the Victoria Police Force and seconded to the Capital Region Integrated Road Safety Unit. [ 7 ] He testified that at approximately 2:00 a.m. on the morning of October 21, 2017, a blue Honda travelling on Blanshard Street near Broughton Street caught his attention.

[ 8 ] He queried the plate number of the vehicle and noted that the registered owner of the vehicle was a Class 7 driver. [ 9 ] Following the vehicle, he noted four heads in the vehicle and no “N” on the rear. [ 10 ] He signalled the vehicle to stop, which it did. At the driver’s door he noted four occupants. [ 11 ] He asked the driver for his driver’s licence which he produced. He was satisfied from the licence that the driver was Mr. Almardy and that the licence was a Class 7 novice licence. [ 12 ] As he leaned in the vehicle and while close to Mr. Almardy, he detected the smell of alcohol on the breath of Mr.

Almardy. He also concluded the other occupants of the vehicle were intoxicated. [ 13 ] He concluded based on his proximity to Mr. Almardy that the smell of alcohol on breath was from Mr. Almardy and not from any of the other occupants. [ 14 ] Mr. Almardy advised him that he had his last alcoholic drink about 9 p.m. earlier that evening. [ 15 ] Cst. Christians formed a reasonable suspicion that the odour of liquor came from his breath and that Mr. Almardy had alcohol in his body.

He then read him the ASD demand. [ 16 ] He testified he used an Alco-Sensor FST device for the purpose of the demand and the device had a certificate of qualification with an expiry of November 9, 2017. [ 17 ] Mr Almardy complied with the demand and Cst. Christians testified it gave a reading of 59 mg %. [ 18 ] As a result of that reading, he prepared and served on Mr. Almardy a 24 hour driving prohibition and an impound notice on his vehicle under

section 93 of the Act . [ 19 ] He also made another inspection of the vehicle to look for an “N” and noted none. [ 20 ] Cst. Christians also prepared and served a Violation Ticket on Mr. Almardy charging him with driving contrary to two restrictions on his Class 7 licence: too many passengers with no qualified supervisor and driving with alcohol in his body, and a third charge of driving a vehicle that did not show an “N” on the rear of the vehicle. [ 21 ] Cst. Christians was extensively cross examined by Mr.

Doroshenko. [ 22 ] He was asked if he relied on the ASD reading to which he replied “yes”. [ 23 ] He agreed he did not make any notations in his note book before preparing a written general occurrence report approximately 80 minutes after the stop.

He relied on that report in giving his evidence and I am satisfied that evidence was reliable and credible. [ 24 ] He agreed that he does not have much if any independent recollection of the event other than the notes he made in his written report and that he does not have a recollection of the exact words of the query or the responses regarding the relationships of any of the passengers to Mr. Almardy. [ 25 ] Cst. Christians agreed on cross examination that he did not give Mr. Almardy any Charter warnings at roadside. Submissions [ 26 ] Mr. Almardy raises several issues with the evidence of Cst.

Christians. [ 27 ] As I understand his counsel’s submissions, he raises two issues on Count 1: 1. the officer in giving evidence of the reading of the Alco-Sensor FST did not say that 59 mg % was “of alcohol”; and 2. the officer relied only on the ASD reading as evidence that Mr. Almardy had alcohol in his body. [ 28 ] And he raises one issue on Count 2: 1. the officer did not establish on the evidence that the passengers were either immediate family or a qualified supervisor.

Analysis and Decision [ 29 ] In considering the first of those submissions, I draw from the whole of the evidence that the reading from the ASD as stated by Cst. Christians was of alcohol. [ 30 ] The circumstances were that Cst. Christians held the belief from, amongst other things, the smell of alcohol on Mr. Almardy’s breath that he had alcohol in his body and acting on that belief, made an ASD demand and the reading on that ASD (Alco-Sensor FST) was 59 mg %. [ 31 ] Considering a combination of sections 25(10.1) and 90.3(2) of the Motor Vehicle Act and

section 30.11, including sections 30.11(1)(

a) and(2)(c.1), of the Motor Vehicle Act Regulations , the only rational conclusion I draw is that the reading from the Alco- Sensor FST refers to alcohol. The reference to the ASD in

section 30.11 of the Regulations immediately follows the subsection prohibiting a Class 7 licence from operating a vehicle while having alcohol in his body.

[ 32 ] But of course having said that, the law is clear the reading of an ASD without an appropriate Charter warning cannot be used as proof of alcohol in the blood. Its use is for the purposes of supporting reasonable grounds for belief of a person having alcohol in the blood and the administrative consequences that may follow. R. v Schultz 2009 BCSC 1521 at paragraphs 26 to 30 and R. v Orbanski 2005 SCC 37 at paragraph 58 [ 33 ] The second arm of that submission is that Cst.

Christians, in answer to a question on cross examination “You relied on this result from this Alco-Sensor FST in the course of this investigation, is that right?”, Cst. Christian replied “Yes, I did”. [ 34 ] And in answer to the assertion that followed next “That is what you based the ticket [later clarified to mean the charge] on”, he replied “Yes”. [ 35 ] As stated above, I cannot accept the reading from the ASD as evidence of alcohol in Mr. Almardy’s body. [ 36 ] In my view the issue is, has Cst. Christians offered sufficient evidence to prove beyond a reasonable doubt that Mr.

Almardy had alcohol in his body? [ 37 ] Is his evidence of smelling alcohol on his breath, in the context of all the evidence I can accept, prima facie proof of Mr. Almardy having alcohol in his body. [ 38 ] One piece of evidence to address is Mr. Almardy’s statement that he last had a drink at about 9:00 p.m., about five hours prior to the road stop. It would appear that this statement was made in response to a question from Cst. Christians and it was not a spontaneous admission. If so, it was a response given without the appropriate Charter warning and cannot be admitted in evidence. [ 39 ] I find that: 1. Mr.

Almardy was aware Cst. Christians believed he had alcohol in his body and Mr. Almardy offered no exculpatory statement as one might think would be the natural response in such a situation; 2. the others in the vehicle appeared to be intoxicated; and 3. Cst. Christians detected the smell of liquor on his breath. [ 40 ] I am satisfied on the evidence and the proximity of Cst. Christian to Mr. Almardy’s head when making his observations that the smell of alcohol was from the breath of Mr. Almardy. That satisfies me that Mr.

Almardy had alcohol in his body as I conclude the smell of alcohol did not come from some other place other than Mr. Almardy’s body. The evidence was credible and reliable. [ 41 ] The third finding is sufficient in itself and it is buttressed by my first and second finding. I conclude on the evidence beyond a reasonable doubt that Mr. Almardy did have alcohol in his body at that time. [ 42 ] I find him guilty on Count 1. [ 43 ] On Count 2, Mr. Almardy’s submission is Cst.

Christians did not prove at least three of the four passengers were not immediate family members or a qualified supervisor. [ 44 ] In my view, the status of the passengers is an exemption to the restriction of only one passenger, and that all the officer has to prove is Mr. Almardy was prohibited from driving with more than one passenger and that there were more than one. [ 45 ] The evidence that Mr. Almardy met the exceptions of immediate family members or he is accompanied by a qualified person sitting in the appropriate seat can only come from Mr. Almardy. [ 46 ] Cst.

Christians did give evidence that he made enquiries of the status of the occupants and drew the conclusion none of the occupants were either immediate family members or was a qualified supervisor (and who I would assume must not be intoxicated by alcohol). [ 47 ] But even if he did not so satisfy himself, he proved what he had to prove to support the charge. [ 48 ] I find Mr. Almardy guilty of Count 2. [ 49 ] Mr.

Almardy did not make any submissions on Count 3 and I find on the evidence he did not have an “N” clearly visible and prominently displayed from the rear of his vehicle and I find him guilty on Count 3. [ 50 ] Mr. Almardy has until January 11, 2019 to make submissions on sentencing either in writing or in person. Failing that, the fines will be as set out on the ticket, being $109 on each count and he will have until January 31, 2019 to pay. BY THE COURT _______________________________________________ Judicial Justice H W Gordon