R. v. Almardy, 2019 BCSC 1066

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Almardy , 2019 BCSC 1066 Date: 20190613 Docket: AH63440863-1 Registry: Victoria Regina v. Khalid Almardy Before: The Honourable Justice J. A. Power On appeal from the Provincial Court of British Columbia, July 24, 2018, R v. Almardy , 2018 BCPC 298 , AH63440863-1 Oral Reasons for Judgment Counsel for Crown: S. M. Simpson Counsel for Appellant appearing by teleconference: E. Wilson, as agent for K. M. Lee Place and Date of Trial/Hearing: Victoria, B.C. June 5, 2019 Place and Date of Judgment: Victoria, B.C.

June 13, 2019 INTRODUCTION [ 1 ] THE COURT: The appellant Khalid Almardy was convicted by a Judicial Justice of the Peace of three offences on a violation ticket. This

summary conviction appeal relates to one count, the first count on that ticket, driving contrary to restrictions by having alcohol in his body, contrary to s. 25(15) of the Motor Vehicle Act . [ 2 ] The appellant submits that the learned Justice of the Peace committed three errors in convicting Mr. Almardy: (

a) that the learned Judicial Justice erred in relying on the evidence of Constable Christians regarding the smell of alcohol on the appellant's breath as the sole basis for the conviction; (

b) that Judicial Justice erred in law by faulting the appellant for not providing an exculpatory statement regarding Constable Christians' belief that he had alcohol in his body, and (

c) that the Judicial Justice applied an incorrect standard of proof in determining whether the appellant had alcohol in his body. [ 3 ] The appellant has persuaded me on all three grounds, and I have determined that the conviction of Count 1 on the violation ticket, drive contrary to restriction -- alcohol, should be set aside and an acquittal should be entered. My reasons are as follows. BACKGROUND [ 4 ] The background to this offence is set out in the Reasons of Judicial Justice dated July 24, 2018 and cited at 2018 BCPC 298 at paras: 5 to 25 as follows: [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. [ 5 ] In his reasons for his decision, which commence at para. 29, the Judicial Justice was prepared to infer that the reading on the approved screening device was of alcohol, although that was not explicitly stated by the investigator. However, the Judicial Justice determined that he could not accept the reading from the approved screening device as evidence of alcohol in Mr. Almardy 's body, since no Charter warning was given to Mr. Almardy.

He then went on to say, commencing at para. 37: [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.

ANALYSIS [ 6 ] I turn now to the first issue, that is whether the Judicial Justice erred by relying on the evidence of Constable Christians regarding the smell of alcohol on Mr. Almardy's breath. In Shergill v. Vancouver , 2017 BCSC 826 , the court set out the difference

between objectively reasonable grounds and the reasonable suspicion at para. 32: [32] Some of the law respecting the “reasonable grounds to believe” and “reasonable grounds to suspect” standards can be summarized as follows: 1. both standards are robust standards determined on the totality of the circumstances, based on objectively discernible facts which will be subjected to independent and rigorous judicial scrutiny; 2. both standards require the entirety of the circumstances, inculpatory and exculpatory, to be assessed to determine whether there are objective ascertainable grounds to suspect or believe that an individual is involved in criminal behaviour; 3. “suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds; 4. while “reasonable grounds to suspect” and “reasonable and probable grounds to believe” are similar in that they must both be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

The reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so; 5. the “reasonable grounds to believe” standard requires something more than suspicion; it is a standard of “reasonable probability”. It is not equated with the standard of proof in criminal cases and indeed is less than that applicable in civil cases i.e., proof on the balance of probabilities.

Still, “reasonability” of the belief envisions a practical, non-technical, common-sense assessment of the factual matrix and totality of circumstances existing at the time the decision was made; 6. the police officer's subjective belief that he or she has the requisite reasonable suspicion or belief is insufficient by itself.

It must also be justifiable from an objective point of view; 7. the existence of objective grounds involves placing a reasonable person in the position of the police officer and having that person assess the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the police officer. If that person would reach the same conclusion as the police officer, then the belief/suspicion will be considered to be objectively reasonable; 8. however, the expertise and experience of a police officer must never be an excuse for arbitrary decisions or conduct.

Something in the conduct observed by the officer, placed in the context of all of the circumstances, must lend objective justification or verification to the officer's belief or suspicion. [ 7 ] Shergill dealt with the odour of vegetative marihuana rather than alcohol as is the case at bar. Most recently in Mackenzie v. British Columbia (Superintendent of Motor Vehicles) , 2018 BCCA 354 , the court discussed the issue of mouth odour and reasonable suspicion.

The court stated at para. 42: [42] The respondent’s suggestion on appeal that “without ascertaining a time of last drink, there can be no reasonable suspicion” is also wrong. An officer may reasonably suspect that a driver has alcohol in his or her body based on mouth odour even if the driver refuses to respond when questioned as to when he or she consumed their last drink.

Alternatively, an officer may reasonably suspect that a driver has alcohol in his or her body based on other indicia of impairment in the absence of a detectable odour of liquor on the driver’s breath. [ 8 ] Having considered the case law, I am persuaded here that the reliance by the Judicial Justice of the odour of liquor solely as the basis for proof of the offence beyond a reasonable doubt was an error. The Judicial Justice ignored the evidence of the officer that he had relied on the ASD fail as well in making his decision to charge.

That ASD result was properly excluded by the Judicial Justice because of the Charter violation. [ 9 ] While odour of alcohol can be sufficient to found reasonable suspicion, I am not satisfied it meets the standard of beyond a reasonable doubt in the circumstances of this case. The Judicial Justice's conclusion ignores other possibilities, such as the odour of alcohol on the breath was stale and the common sense proposition that that the alcohol itself had been eliminated from the body. As noted in the decision, the Judicial Justice excluded the statement of Mr.

Almardy that he had a drink at about 9:00 p.m., about five hours prior to the road stop, because it was given without the appropriate Charter warning. However, that statement, had it been allowed, could have suggested that the alcohol smell was stale. [ 10 ] The error of the Judicial Justice of the Peace is compounded by his finding that Mr. Almardy offered “no exculpatory statement as one might think would be the natural response in such a situation” and that “the others in the vehicle appeared to be intoxicated”. The law is clear that Mr. Almardy is entitled to remain silent and that Mr.

Almardy's guilt cannot be presumed by his associates' actions. I conclude that these findings appear to shift the burden to Mr. Almardy as argued by the appellant. [ 11 ] In light of these errors, I am of the view that the conviction on Count 1 of the violation ticket should be set aside and that an acquittal should be entered. “J. A. Power, J.” The Honourable Madam Justice J. A. Power