R. v. Ashir Date:, 2010 BCPC 56

Citation: R. v. Ashir Date: 20100505 2010 BCPC 0056 File No: AH47992070 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Abdul- Razzak ASHIR REASONS FOR JUDGMENT OF JUDICIAL JUSTICE OF THE PEACE H W GORDON Appearing for the Crown: Sgt. Glenn Vermette Counsel for the Defendant: Andrew Tam Place of Hearing: Victoria, B.C.

Date of Hearing: April 15, 2010 Date of Judgment: May 5, 2010 Introduction [ 1 ] The disputant, Abdul- Razzak ASHIR, was ticketed in Victoria under the Motor Vehicle Act , RSBC 1996 c.319 , on June 11, 2009 for speeding in a school zone, contrary to section 147(1) of that Act. He pleaded not guilty and I heard the matter on April 15, 2010, at the end of which I reserved judgment.

The Legislation [ 2 ] Section 147(1) reads: A person driving a vehicle on a regular school day and on a highway where signs are displayed stating a speed limit of 30 km/h, or on which the numerals "30" are prominently shown, must drive at a rate of speed not exceeding 30 km/h while approaching or passing the school building and school grounds to which the signs relate, between 8 a.m. and 5 p.m., or subject to subsection (1.1), between any extended times that are stated on the signs. The Facts [ 3 ] All of the evidence in respect of this charge was given by the officer who issued the ticket, Sgt.

Vermette , a 20 year member of

the City of Victoria Police Department and the NCO in charge of traffic. [ 4 ] Sgt Vermette testified as follows. [ 5 ] On Thursday, June 11, 2009, Sgt Vermette was specifically monitoring traffic speed in a school zone in Victoria, BC. The zone was in the 100 block of Oswego Street. He was using a laser speed measuring device. Sgt Vermette described the area as a flat straight street. He said (and I am quoting because this was one aspect of the evidence that the Disputant relies on): “School was still in session, it was a Thursday afternoon, at the elementary school at this location”.

He was there for the specific purpose of speed monitoring because of complaints from parents and others. Oswego Street is one of the roadways used by those driving between the cruise ships nearby and downtown Victoria. [ 6 ] Oswego Street runs in a north / south direction, with a single lane in each direction. At each end of the block that Sgt Vermette was monitoring is a standard regulatory school sign with a 30 km/h tab underneath. The sign for southbound traffic was located just to the north of the school playground.

The second sign was at the end of the block on the opposite side, marking the beginning of the zone for north bound traffic and delineating the end of the zone for southbound traffic. Both signs were clearly visible. Sgt Vermette was parked in his unmarked police vehicle 24 m in front of the sign for southbound traffic. With his laser, he measured the distance to the sign in front of him (24.7

m) and the sign at the other end for northbound traffic (254.3 m). In giving his testimony, Sgt Vermette drew a sketch showing the school and grounds as occupying the west side of the block with streets intersecting Oswego Street at the north and south ends and the regulatory signs at essentially the beginning of each end of the block. He described the sign at the south end as opposite the south end of the school yard. [ 7 ] Sgt Vermette then testified that he has had training since 1991 on speed estimation and on the use of radar and laser. He can estimate speed with an error within +/- 5 km/h.

On this occasion, he was using a LTI Marksman 2020 handheld battery-powered laser. He tested it at the beginning and the end of his shift that day. [ 8 ] The officer testified that at about 9:28 a.m., he observed a blue Toyota coming up behind him. As it passed Sgt Vermette in his parked unmarked police vehicle and into the 30 km/h zone, he visually estimated the vehicle’s speed at 48 km/h. He then initiated his laser unit and aimed it on the vehicle and obtained a reading of 46 km/h at 75.1 m. There were no other vehicles in the block either southbound or northbound.

He concluded his testimony by saying that given the distances, measured with his laser unit, from his parked police vehicle to the southbound sign and the end of the zone marked by the northbound sign, he concluded the vehicle driving this speed was clearly “within the school zone signs”. Sgt Vermette then stopped the vehicle, which was driven by the Disputant, Mr. Ashir , and issued him the violation ticket in dispute. The Issue and Analysis [ 9 ] Mr. Tam did not call any evidence for the defence . He argues the Crown did not prove two essential elements of the offence.

The first element he says was not proved is that there is no evidence that June 11, 2009 was a regular school day. The second element is at the point within the zone at which the laser unit registered a speed of 46 km/h, Sgt Vermette did not give evidence that the vehicle was either approaching or passing the school building or school grounds, or even that there was a school building or grounds. He says that either of those two missing elements are fatal to the Crown’s case and for those reasons, Mr.

Ashir is entitled to be acquitted. [ 10 ] I address first the issue of whether June 11, 2009 was a regular school day. The evidence was that June 11 was a Thursday and that on Thursday afternoon, school was in session, which I take to mean, there were students in attendance. The reference to the afternoon was obviously a slip of the tongue, but nevertheless was the only specific evidence on that point. All of the other evidence related to the time of the alleged offence, 9:30 in the morning.

His point is that there is no evidence school was in session at 9:30 on the morning of June 11. [ 11 ] In my view, “regular school day” has a broader meaning in section 147(1) than whether on the specific day, there were students in attendance. I conclude “regular school day” has a statutory meaning, not a factual meaning. That expression is not defined in either the

Interpretation Act or the Motor Vehicle Act . So I have taken my guidance from the School Act , RSBC 1996 c.412 , and its Regulations.

Section 1 of the School Act defines school day as “any one of the days in session” and days in session (abridged) as “the days in a school year in which teachers are scheduled, in the school calendar, to be available”. I found the School Calendar Regulation, B.C. Reg. 114/2002 , to be of greatest assistance.

Section 6 of that Regulation requires a Board to operate each school in accordance with the school calendar.

Schedule I (Supplement) to the Regulation sets out the school calendar for 2008 / 2009 and it lists March 23 as the day that school reopens after Spring Vacation and, with the exception of 3 single-day holidays not relevant to this matter, June 26 as the day school closes. [ 12 ] I conclude from this legislation that a regular school day within the meaning of the Motor Vehicle Act in the 2008 / 2009 school year is any weekday between September 2, 2008 and June 26, 2009 other than the periods listed as Winter Vacation and Spring Vacation or the 5 listed statutory holidays.

I therefore conclude that Thursday, June 11, 2009 was a regular school day. [ 13 ] The second issue highlights language in section 147(1) which is at best equivocal (and not the only such language in the Motor Vehicle Act ), or at least seemingly not expressive of its intent. But in this case, it is not the equivocal language which is directly at issue. [ 14 ] The disputant argues that an element of the offence is that a driver must be approaching or passing the school building and school grounds at 30 km/h in order to be convicted under section 147(1).

And he argues that while Sgt Vermette gave evidence of an elementary school and a playground, he did not give evidence of a school building , or if he did, he did not give evidence that Mr. Ashir was either approaching or passing it. He relies on a judgment of the late Justice Lamperson when he was a county court judge in Kamloops, R. v. Schaefer [1989] B.C.J. No. 2291 . [ 15 ] Schaefer is an appeal from an acquittal under what is now section 147(2).

The trial judge had found that the Crown had failed to prove an essential element of the offence: that the violation took place as the vehicle was approaching or passing “a public playground

for children”. As the only evidence was that the speed zone fronted on Albert McGowan Park, that evidence was insufficient to prove that it was a “public playground for children”. The Court held that “dictionary

definitions [of playground] do not permit the court to infer that a park is necessarily a playground or that a playground is necessarily public and for children”. From that authority, Mr. Ashir argues that similarly the Court cannot infer that a school is a school building and he should therefore be acquitted. [ 16 ] I find Schaefer distinguishable. The case rests on the Court’s determination that although this park was held to be a playground the Court could neither infer nor take judicial notice that that particular playground is for children.

The Court held that as playgrounds might be for persons other than children, that inference was not open to the Court. Although the case is an illustration of the limits of what a Court may infer , Schaefer is authority only on that point as it applies to section 147(2). [ 17 ] Schaefer does contain some useful principles that I take guidance from in deciding this case. Judge Lamperson refers to R. v. Smith (1957), 1957 CanLII 511 (NS SC) , 27 C.R. 107 and R. v. Rich (1977), 1977 CanLII 3223 (NS SC) , 38 N.S.R. 157 , both relied on by the Crown in Schaefer and in this case.

Smith cites the principle that the courts should give ordinary language the plain meaning that ordinary people attach to it (a slightly looser description of the “ordinary sense” part of the principle stated by E.A. Driedger and often cited by the Supreme Court of Canada, that the words of a statute should be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, its object and the intention of the body enacting it).

Rich cites the principle that “a court may use such general information and that knowledge of the common affairs which men of ordinary intelligence possess”. [ 18 ] Assessing the evidence in this case, I find that Sgt Vermette’s reference to a “school” and “elementary school” on this block of Oswego Street, and his writing “school” on that location on the sketch he drew in evidence is sufficient for me to infer that there was at this location a school building.

I have reviewed the recording of the evidence and Sgt Vermette testified that the sign for southbound vehicles “was just to the north of the playground of the school”. So I find there is evidence of both a school building and school grounds. I make this finding because the term “school building and school grounds” is conjunctive and not disjunctive. One might argue that section 147(1) does not apply if there is one but not the other. [ 19 ] The other part of Mr. Ashir’s argument is that there was no direct evidence that at 50.4 meters into the zone where Mr.

Ashir’s vehicle was clocked by the laser unit at a speed of 46 km/h, the vehicle was either approaching or passing the “school building and school grounds”. However, I find on my appreciation of the evidence that Mr. Ashir was approaching or passing the school building and school grounds. [ 20 ] The school zone between the two signs was 254.3 meters in length. I infer and conclude that where a vehicle has entered the first 50.4 meters of a zone of that length in which there was a school building and school ground, it had to be either approaching or passing them.

In addition, Sgt Vermette testified that the sign for southbound traffic, the direction Mr. Ashir was driving, was “just to the north of the playground for the school”. To interpret approaching or passing a school building and school grounds on those facts in any other way would be to misapply the principle of statutory

interpretation from Driedger recited above Finding [ 21 ] To summarize, I find that Mr. Ashir was driving a vehicle in a 30 km/h school zone at a speed greater than 30 km/h on a regular school day, after 8 a.m. and before 5 p.m., while approaching or passing a school building and school grounds to which the school speed signs relate. I find him guilty of speeding contrary to section 147(1) of the Motor Vehicle Act . Comment on the Wording of Section 147(1) [ 22 ] Before I conclude this judgment, I comment on the equivocal or illogical drafting of section 147(1).

It seems to me that its wording could lead to its inapplication in situations to which it is likely the Legislature intended it to apply. One might have thought that having set a 30 km/h zone with a beginning and an end, the

section would have clearly set a maximum speed of 30 km/h while driving in any part of the zone. But it does not so state. A vehicle is only required to drive at a speed of 30 km/h in the zone while approaching or passing the school building and school grounds. A school zone in some places may be long enough that it may not be clear when a vehicle is approaching a school building or school grounds (assuming for the moment the disjunctive) or if it has yet to arrive at the approaching stage.

Perhaps even more problematic, if a vehicle has approached and passed but has not yet left the zone, is it still required not to exceed 30 km/h. [ 23 ] I see another serious deficiency in the application of the

section on its wording. There are school speed zones on roadways where both the school building and school grounds are not contiguous to the roadway. There may be residential or industrial buildings or treed land separating the road and the school building or school grounds.

If the limit of 30 km/h in the zone is restricted to those places where the vehicle is approaching or passing the school building or school grounds, it strikes me that neither of those factual situations might arise in the example given above. [ 24 ] I suggest that to hold that the 30 km/h speed applies while at any place in the zone in the scenarios cited above would be to strain the wording of section 147(1) beyond any saving application of the object and intention of the Legislature and ignore the grammatical and ordinary meaning of the language. And as it is a

section dealing specifically with schools, the principle of

interpretation that the specific overrides the general would bar the use of section 146(7) of the Motor Vehicle Act as an alternative. ___________________ H. W. Gordon, JJP