Khalid Almardy was stopped by police in the early morning hours of October 21, 2017 in Victoria as he was a novice driver who was not displaying a new driver sign on his vehicle and was carrying too many passengers. Cst. Christians of the Capital Region Integrated Road Safety Unit detected the odour of liquor on Mr. Almardy's breath. Drivers in the Graduated Licensing Program must have zero blood alcohol when driving.
A roadside screening device was used and Mr. Almardy's blood alcohol concentration (BAC) was determined to be 59 mg%. Based on the screen and the odour of liquor, a ticket for driving contrary to licence restrictions (zero BAC) was issued.
The Judicial Justice excluded the screening evidence as it had been taken without a Charter warning. He convicted Mr. Almardy on the basis of the odour of liquor on his breath alone.
That conviction was appealed.
Justice J. A. Power set aside the conviction and entered an acquittal. She found that the Judicial Justice erred by relying solely on the odour of liquor on Mr. Amardy's breath as evidence of alcohol in his body without further evidence to discount the possibility that the odour was stale and the alcohol had been eliminated from the body.
Doesn’t get any less “common sense” as this pathedic judicial system gets stupider and stupider. My first observation was that this Officer was from the ‘traffic’ division and I would have understood they would be well versed to ALWAYS read the charter, in any circumstance, but I am obviously incorrect. Second, this ‘N’ violator had two other charges... no? Too many passengers & no N sign. Why not apply all violations? Discretion is not always mandatory, besides, if he was drinking/driving then there is little cause to not charge him with all violations, at least one of them may have stuck. So, if and when, in the future this up and coming drunk driver kills another here’s suggesting the judge has a sober (pun intended) thought and reflection of their very poor inept ruling.
Obviously I am extremely biased with drivers who drink and firmly believe NO technicality should ever dismiss evidence, however “unchartered” one believes it was acquired. I think our courts’ pendulum has swung and stuck so far in the unbalanced position that it makes a joke out of the system that only exercises to insult its good citizens who abide by it. It has become dysfunctional, disasterous and entirely in disrepute.
It's up to the courts - in this case the Judicial Justice - to determine these things; including whether or not the police followed proper procedure. I would like to think that they consider every situation from every angle, in order to be objective in their rulings.
It's important to note that, according to the evidence, Mr Almardy hadn't had a drink in five hours; he may well have believed that all of the alcohol he had consumed the previous evening had been eliminated from his system - note that he was completely candid in admitting that he had consumed alcohol at that time. His BAC does not indicate that he was in fact impaired - 0.059 is far more likely to result in a 24-hour suspension (which he received) than a criminal conviction for impaired driving (which any lawyer would probably be able to argue against successfully in court).
So let's think about this for a moment. Reading through the evidence of proceedings, including the appeal, we see that Mr Almardy has indeed been convicted both of failing to display an 'N' on his car, and also of having too many passengers according to the restrictions on his license.
So his situation is this: he's already had his car impounded, and will have had to pay a ton of money to get it back; plus, those two tickets that he's stuck with will undoubtedly result in a license suspension, fines, and penalties. He won't be driving for quite some time, as a result; and when he does get his license back, he'll have to re-start his 2-year 'N' status.
I think that's enough.
The screening device has one use under the Criminal Code and that is to form reasonable and probable grounds to believe a driver is impaired by alcohol. That gives the officer reason to make a breath demand and carry out an investigation. Advising the driver of Charter Rights comes after the use of the screening device and before further breath testing.
The Motor Vehicle Act requires a peace officer to take certain actions based on this screening device result under the Immediate Roadside Prohibition regime. Again, no Charter advice is required here.
Use of the screening device for any other purpose requires that the Charter rights be explained to the subject and a choice of whether or not to provide a sample made. Here there is no penalty for refusing to provide a sample as there would be in a Criminal Code investigation.
In this case, because the officer used the screening device as part of an impaired driving investigation and did not advise Mr. Almardy of his Charter Rights, the outcome of the test could only be used for the impaired driving investigation, not the ground to issue a ticket for having alcohol in his body as a new driver.
The Justice was correct to exclude that evidence in his determination of guilt on the ticket count.