R. v. Alshehri Date:, 2017 BCPC 362

Citation: R. v. Alshehri Date: 20171207 2017 BCPC 362 File No: AH88205721-1 AH88205755-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. ABDULAZIZ MELFI ALSHEHRI REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Counsel for the Crown: Cst. G. LeBlanc Appearing for the Accused: L. Burrows and A. MacMillan, Articled Students Place of Hearing: Victoria , B.C. Dates of Hearing: April 6, 2017 and August 30, 2017

Date of Judgment: December 7, 2017 INTRODUCTION [ 1 ] These Reasons are another in the saga involving foreign students in British Columbia on Study Permits issued to them by Citizenship and Immigration Canada and who drive using the driver’s licence issued to them in their home country. [ 2 ] The issue raised here is factually different than the issues I dealt with in previous decisions: R. v. Al Anazi ( 2015 BCPC 253 ) and R. v. Alfarraj ( 2016 BCPC 251 ). [ 3 ] Mr. Alshehri is a citizen of Saudi Arabia who is in Canada on a Study Permit. [ 4 ] He was issued two Violation Tickets in 2016 by Cst.

LeBlanc, one on January 11 and the other on May 11, 2016. [ 5 ] The first ticket was a three-charge Violation Ticket for breaches of conditions of a B.C. “L” licence issued to Mr. Alshehri, and the second is a single charge of driving with no driver’s licence under s. 24(1) of the Motor Vehicle Act . LEGISLATION [ 6 ] The provisions of the Motor Vehicle Act applicable to these Reasons are: 24

(1) Except when accompanied by a person authorized by the Insurance Corporation of British Columbia to examine persons as to their ability to drive and operate motor vehicles, a person must not drive or operate a motor vehicle on a highway unless, in addition to any licence or permit which he or she is otherwise required to hold under this Act , the person holds a subsisting driver's licence issued to him or her under this Act of a class appropriate to the category of motor vehicle driven or operated by him or her. 25

(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. . . . . 34(1.1) Subject to subsection (1.2), the following persons are exempt, for the period specified, from the requirements respecting the holding of a driver's licence issued to him or her under this Act : . . . . (

c) a person who has a validly issued and subsisting driver's or operator's licence or permit issued according to the laws where he or she is ordinarily resident, for the period that the person is registered as a full time student at and attends any of the educational institutions listed in section 21 (2)(b); . . . .

(1.2) A person claiming an exemption under subsection (1.1) must carry a valid and subsisting driver's or operator's licence or permit on his or her person while operating a motor vehicle referred to in subsection (1) and must produce that driver's or operator's licence or permit to a peace officer on demand. FACTS [ 7 ] There are few facts in dispute. [ 8 ] At the time, Mr. Alshehri, a citizen of Saudi Arabia, was in Canada on a Study Permit issued by Citizenship and Immigration Canada on September 30, 2015. The Permit allowed him to remain in Canada for 13 months to attend a Designated Learning Institution. Mr.

Alshehri first came to Canada in December 2014 on a previous Study Permit. He attended the University of Victoria (“UVic”) continuously from January 2015 to December 2015. [ 9 ] He returned to Saudi Arabia at the completion of his studies at UVic in December 2015 and came back to Canada in early January 2016 enrolling full time in English language studies at Inlingua Victoria College of Languages in Victoria from January 4 to May 6, 2016.

He then enrolled in English for Post-Secondary Education at Sprott Shaw Language College in Victoria (then King George International College) from May 2 to July 22, 2016. [ 10 ] On his initial arrival in Canada in December 2014, Mr. Alshehri did not have a current driver’s licence from Saudi Arabia or from any other jurisdiction. He previously held a driver’s licence from the Kingdom of Saudi Arabia which had expired on November 15, 2013. [ 11 ] He was advised he could apply for a B.C. driver’s licence, which he did, after arrival and in March 2015 was issued a Class 7 “L” (Learner’

s) licence. [ 12 ] That licence had the usual “L” licence restrictions such as requiring a qualified supervisor over the age of 25, restriction to one passenger, no driving between midnight and 5:00 am and a requirement to display an “L” on the rear of the vehicle being driven.

[ 13 ] Mr. Alshehri was not happy with these restrictions, having been ticketed twice in July 2015 for driving contrary to those restrictions, so when he was home in Saudi Arabia in December 2015, he applied for and obtained (or perhaps renewed) a Saudi Arabian driver’s licence which expires in October 2020. [ 14 ] At 12:55 a.m. on January 11, 2016, Mr. Alshehri was stopped by Cst. LeBlanc, of the Victoria Police Department, on Douglas Street in Victoria. [ 15 ] Cst. LeBlanc’s check on his in-car computer showed that the registered owner of the vehicle, Mr. Alshehri, was the holder of a B.C. “L” driver’s licence.

Mr. Alshehri did not produce the B.C. licence but said he was the holder of a Saudi driver’s licence. He did not produce that licence either. He did produce a B.C. Identification card in his name. [ 16 ] Mr. Alshehri advised the officer he was in Canada on a Student Visa and was currently a student. He did not produce any documents to Cst. LeBlanc to support any of these statements. [ 17 ] At trial, Mr.

Alshehri produced the Saudi licence and a photocopy of a completed and signed Approved Translator Declaration for Conduct of a Translation (MV2943) which sets out, in English, the information on the Saudi licence which is in Arabic. The copy was not signed by an ICBC official or otherwise stamped by ICBC. [ 18 ] Based on Mr. Alshehri being the holder of a Class 7 “L” licence (information obtained by the officer from his in-car computer), and it being after midnight, Mr. Alshehri not having a qualified supervisor and not having an “L” displayed on the rear of his vehicle, Cst.

LeBlanc issued him a Violation Ticket charging him with violating those three conditions of his Class 7 “L” licence. [ 19 ] Exactly four months later, on May 11, 2016, at almost the same location as the stop in January, Cst. LeBlanc stopped Mr. Alshehri again driving the same vehicle. [ 20 ] This time, a check of his in-car computer showed that the registered owner [Mr. Alshehri] was prohibited from driving, and he served on him a prohibition notice prohibiting him from driving in British Columbia for 3 months. [ 21 ] Mr Alshehri, again, told Cst.

LeBlanc that he was a student on a Student Visa and was driving on his Saudi driver’s licence. He, again, did not produce any documents to support these statements. [ 22 ] Cst. LeBlanc, therefore, issued another Violation Ticket to Mr. Alshehri with one count of driving without a driver’s licence on the basis that from the information from ICBC, his British Columbia driver’s licence was “invalid.” [ 23 ] Cst. LeBlanc entered into evidence a copy of Mr.

Alshehri’s driver’s extract that, on my reading, was taken from the CPIC data base on May 11, 2016 - the time of the second stop. [ 24 ] Among other things, that extract states that the “Learner DL” is invalid and that he holds “another jurisdiction driver’s licence from a non-reciprocating jurisdiction.” It records a driver’s licence number from that jurisdiction (the same number as on both Saudi Arabian licences in evidence, one that expired in November 2013 and the other that expires in October 2020) and that his British Columbia Class 7 licence expires on March 17, 2017. [ 25 ] It further states under the word “action”, “driver may be in possession of foreign DL, serve prohibition notice – sec 93(1)(a)(ii) 3 mos.” [ 26 ] As stated above, Cst.

LeBlanc did issue a 3-month driving prohibition on Mr. Alshehri that night and issued him a one count Violation Ticket for driving without a licence. ANALYSIS AND DECISION [ 27 ] Addressing first the violation ticket issued on January 11, 2016, the facts are that on that date, Mr. Alshehri did have an in- effect B.C. driver’s licence. Therefore, until it was in a different status, as it apparently became after this ticket was issued to him and he attended at Driver’s Services, he was bound by its conditions. [ 28 ] Mr.

Alshehri does not dispute that at the time of the traffic stop, he was not in compliance with three of the conditions of his Class 7 licence: no supervisor, driving after midnight and no “L” displayed on the rear of the vehicle. [ 29 ] In my view, ICBC or Driver Services do a disservice to visiting students to this country by failing to clearly articulate to them in an effective way what they should be doing when driving in B.C. on a foreign driver’s licence, as I have articulated on previous judgments on this issue. In this case, Mr.

Alshehri had previous dealings with traffic enforcement officers and Drivers Services about his responsibilities and was thereby alerted to potential problems. [ 30 ] I do not consider on the facts of this case that he exercised the necessary due diligence or that he had been officially induced into error, so as to establish a legal defence. [ 31 ] Based on his experience with B.C. motor vehicle laws prior to January 11, 2016, Mr. Alshehri should have known, or have sought information, that if he wanted to drive in B.C. on his Saudi Arabian driver’s licence under the authority of s. 34(1.1)(

c) of the Act , he needed to advise Drivers Service of that fact and in some way annul his B.C. driver’s licence. [ 32 ] This he did not do until after receiving the Violation Ticket on January 11, 2016. [ 33 ] An additional fact which backstops my finding that he was still bound by his B.C. licence is that despite the Letter of Enrolment from Inlingua Victoria College of Languages in evidence, confirming Mr. Alshehri’s full time enrolment in that school from January 4 to May 6, 2016, and a statement in the letter that it is “accredited by Languages Canada,” there is evidence it was not an institution listed under the Motor Vehicle Act .

[ 34 ] For that reason, Mr. Alshehri would not have complied with all the criteria for exemption stated in s. 34(1.1)(c). [ 35 ] For all these reasons, I find him guilty of the three charges. [ 36 ] Addressing now the second ticket issued on May 11, 2016, a single charge of driving without a driver’s licence under s. 24(1), I take a different view of the result than that above. [ 37 ] By this time, presumably as a result of his visit to Driver Services, ICBC invalidated Mr. Alshehri’s B.C.

Class 7 driver’s licence, noting in its system that he may be driving on a foreign driver’s licence, recording in that system the Saudi number of that driver’s licence. [ 38 ] Based on those facts, I am satisfied that on May 11, 2016, Mr.

Alshehri was driving under the provisions of s. 34 (1.1)(c), assuming he met all of the criteria of that exemption. [ 39 ] Addressing the criteria, I am satisfied that he had a validly issued Saudi driver’s licence and was enrolled and attending as a full time student at a listed educational institution (King George International College) and, therefore, met the conditions to drive under s. 34(1.1)(c). [ 40 ] The three month prohibition issued by the Superintendent of Motor Vehicles under s. 93(1)(a)(ii) [unsatisfactory driving record] did not take effect until the Notice of Prohibition was served on Mr.

Alshehri, that being after the traffic stop. [ 41 ] For those reasons, I find Mr Alshehri not guilty of driving without a valid B.C. driver’s licence as he was exempt from doing so under s. 34(1.1)(c). ADDITIONAL COMMENTS [ 42 ] I add these following comments: Mr Alshehri did not assist himself at roadside on either occasion when he failed to produce his Saudi licence or any documentation to support his s. 34(1.1)(

c) exemption. [ 43 ] He is not guilty of the offence charged as a result of his failure to do so.

Guilt is a question of fact and law, not of a lack of evidence at roadside. [ 44 ] But as I said in my two previous decisions cited in paragraph 2 above, the lack of a legal requirement at roadside to substantiate an exemption leaves the enforcement official in a difficult position. [ 45 ] Section 34(1.2) requires the driver to carry his or her out-of-province driver’s licence while operating a vehicle and to produce it on demand of an enforcement officer (an offence he might have been guilty of, had he been charged).

The Act does not require the driver to carry or produce any other qualifying documents or to provide an English translation of a licence printed with essential information in a language other than English. [ 46 ] The only public documentation I could find of assistance to an out-of-province student driver on this issue is a pamphlet issued by ICBC (PI032016) entitled motorists moving to or from B.C.

Under the heading What if I am a student?, it states, in its entirety: You don’t need to get a B.C. driver’s licence if : • you have a valid driver’s licence from your home jurisdiction and • are registered as a student and attending one of the B.C. educational institutions listed on icbc.com in the Driver Licensing section. You need to carry your valid out-of-province licence and your current school ID when driving in B.C. [ 47 ] Drivers such as Mr Alshehri, unfamiliar with our driving privilege requirements and usually with limited knowledge of English, at least initially, are at a considerable disadvantage.

ICBC could do a great service to these visitors and to the enforcement officers charged with enforcing the motor vehicle laws if it made clear in the law what is required of a student driving under the s. 34(1.1)(

c) exemption and made clear in its public information what such a student should have at roadside when driving under that exemption. ____________________________ Judicial Justice H. W. Gordon