R. v. Ali, 2019 BCSC 2268

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ali, 2019 BCSC 2268 Date: 20191218 Docket: 28726 Registry: Vancouver Regina v. Muktar Ali Before: The Honourable Mr. Justice Silverman On appeal from: A decision of the Provincial Court of British Columbia, dated July 11, 2019 ( R. v. Ali , Richmond File No. AJ10993443) Oral Reasons for Judgment In Chambers Counsel for the Crown (Respondent): J. Horneland The Appellant, appearing in person: M. Ali Place and Date of Hearing: Vancouver, B.C. December 18, 2019 Place and Date of Judgment: Vancouver, B.C.

December 18, 2019 [ 1 ] THE COURT: These are oral reasons. If a transcript is ordered I reserve the right to edit, although that process will not involve a change in the decision or in the reasoning. [ 2 ] Mr. Ali appeals a conviction before a Judicial Justice (“JJ”) for distracted driving under s. 214.2(1) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 . The evidence of the officer who saw the incident was the only evidence presented by the Crown. Mr.

Ali also gave evidence which, if accurate, would have resulted in an acquittal. [ 3 ] The officer's evidence is referred to in paras. 3 and 4 of the transcript of the JJ’s reasoning. Through his rear view mirror, he saw Mr. Ali’s head bobbing and saw that Mr. Ali was holding a black cell phone in both hands while moving his fingers up and down on the cell phone. He pulled the vehicle over and approached it, satisfying himself that it was Mr. Ali. He noticed at that time that there was a cell phone of the same colour, a black cell phone that was being charged and laying on top of the console.

That part of the evidence is consistent with the evidence of Mr. Ali. [ 4 ] There is no suggestion by the officer that he saw Mr. Ali put the phone into that console, although clearly there would have been time for that to have occurred and for the officer’s previous evidence of what he saw through the rearview mirror to have also been accurate. [ 5 ] The appellant testified that the hand motions that were seen were not the operating of the cell phone, which according to Mr. Ali had always been in the console throughout the minutes the officer would have observed him.

He said that he had been eating peanuts, thereby explaining his fingers moving up and down, and drinking a cup of tea, which both would have also explained his looking down from time to time. [ 6 ] The JJ accepted the officer’s evidence over Mr. Ali’s and if that were the extent of his reasons, I would have concluded that the decision was a reasonable one to have arrived at on that evidence.

However, there is more to the judgment, which suggests that an error in law, which the Crown concedes was made, had an impact on the ultimate decision, which I will of course explain more fully now. [ 7 ] First, I credit and thank Crown counsel, Ms. Horneland, for drawing this error to my attention.

Nevertheless, she does not agree that it had an impact on the judgment and also does not agree that it should have any impact on this decision, and that the judgment should therefore stand. [ 8 ] The error is found in para. 16 of the reasons, after the JJ had made all the references to the evidence that are in the judgment: [16] The evidence of Mr. Ali by itself would be sufficient to confirm a conviction for cell phone use. I rely on the case of R. v. Jahani out of the B.C.

Supreme Court where it was held that simply charging a cell phone, even if the cell phone is off, is the using of a function of the cell phone and, therefore, it falls within s. 214.2(1) of the Motor Vehicle Act .

The cite for R. v. Jahani is 2017 BCSC 745 . [ 9 ] Paragraph 16 has two sentences in it. Each contains an error. The first sentence about Mr.

Ali's evidence being sufficient to confirm a conviction is wrong, and it is wrong because of the error in law which is made in the second sentence about the principle that Jahani stands for. [ 10 ] The Crown concedes that it does not stand for that proposition and that the simple condition of a phone in a charger, without the driver handling it or touching it or using it physically in some way, is not sufficient for a conviction. [ 11 ] Counsel also tells me that the foregoing principle has, since that time, been stated more clearly by this Court with respect to the mere position of a phone in the charger being insufficient to be an offence under that section.

The case is R. v. Partridge , 2019 BCSC 360 . [ 12 ] If the judgment ended after para. 15, that is immediately before the offending paragraph that I have referred to, I would agree that the judgment should stand. [ 13 ] However, the judgment does not simply include para. 16. It states in the second sentence, “I rely on the case of R. v. Jahani ” and then the sentence, that I previously read continues.

In other words, it is the same sentence where he erroneously states the significance of the case, where he says “I rely on the case” at the beginning of that sentence. [ 14 ] The two paragraphs which follow para. 16 also, together with para. 16, raise the more than reasonable possibility that, despite what he said about the officer’s evidence, he is in fact convicting on the basis of the cell phone being in its holding position, simply charging without any involvement from the driver, while driving or being at the driver’s wheel. [ 15 ] While it was not necessary after para. 16 for the JJ to necessarily repeat his views about the officer’s evidence, a reasonable

interpretation of that paragraph, together with paras. 17 and 18, immediately on the heels of the error about the law, is that he ultimately convicted on the basis of the phone being in the charger, the very thing that the error is all about. [ 16 ] Paragraphs 17 and 18 are as follows: [17] Mr. Ali has given evidence that his cell phone was on although it was upside down and it was being charged at the time and was within easy reach on his console. I say again that that is consistent with the evidence of both Mr. Ali and the evidence of the officer.

Paragraph 18: [18] Given all of that evidence and weighing all of the evidence before me, I have no doubt whatever that you were using a cell phone within the definition of use of cell phone in the Motor Vehicle Act and its regulations that I, therefore, must find you guilty as charged. [ 17 ] Why in that paragraph, I ask myself, does he refer to “the definition of use” immediately on the heels of para. 16, where he is speaking (erroneously) about the use of the cell phone?

There is simply no reason to mention it, other than to continue the erroneous reasoning concerning the word “using” that began in para. 16. [ 18 ] In my view, following immediately after Jahani , it is perfectly reasonable for me to conclude that he is referring to use as being a phone charging and not being “used” in any other way. [ 19 ] The Crown argues that his findings about the officer’s credibility and evidence should nevertheless stand and should lead to an upholding of the conviction. [ 20 ] I do not agree. The error has led to significant ambiguity.

It is equally possible that, despite the officer’s evidence, the conviction was on the basis of the phone being in the charger. [ 21 ] When being convicted of a criminal or quasi-criminal offence, an accused person and an appellant are entitled to a decision which is unambiguous with respect to the essential issue which bears on his guilt or innocence. [ 22 ] For all of those reasons, the appeal is allowed. The conviction is set aside. DISCUSSION [ 23 ] THE COURT: Ms. Horneland, I sensed that your heart was not in this, and that is to your credit. Thank you for your help. [ 24 ] MS.

HORNELAND: My pleasure, My Lord. “Silverman J.”