R. v. Sakhon, 2024 BCPC 9

Citation: R. v. Sakhon 2024 BCPC 9 Date: 20240117 File No: 244024-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. HARMINDER SINGH SAKHON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: T. Dotten Counsel for the Defendant: K. Lee Place of Hearing: Surrey , B.C. Dates of Hearing: Nov. 15-18, 2022, Jan. 23-25, Feb. 28, March 1-3, Oct 23-26, Nov. 6-7, 2023 & Jan. 2, 2024 Date of Judgment: January 17, 2024 [ 1 ] The accused, Harminder Singh Sakhon, is charged with three offences stemming from a motor vehicle collision on March 29,

2020. [ 2 ] The charges are: Count 1: operating a conveyance while impaired and caused bodily harm, s. 320.14(2); Count 2: operating a conveyance with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood within two hours of ceasing to operate the conveyance and caused bodily harm, s. 320.14(2); and, Count 3: dangerous operation of a conveyance and as a result caused bodily harm, s. 320.13(2). [ 3 ] The Crown bears the burden of proving each element of each offence to the standard of proof beyond a reasonable doubt. The burden of proof never shifts to the accused.

Overview [ 4 ] On the afternoon of March 29, 2020, a significant two vehicle head-on collision occurred in the westbound lane of 21200 block of 56 Avenue, Langley, BC. This collision involved a red GTO travelling eastbound on 56 Avenue and a white Honda Pilot travelling westbound on 56 Avenue. The collision occurred when the eastbound red GTO drove into the westbound lane of travel. The person found in the driver’s seat of the red GTO by attending civilians and police officers became a suspect in an impaired driving and dangerous driving investigation.

The Crown alleges that the accused was the operator of the red GTO at the time of the collision. [ 5 ] The Crown called a number of witnesses on this trial including civilian witnesses who made observations related to the collision and its aftermath; police officers who were involved in the investigation of the offences before the court; and experts in relation to accident reconstruction and toxicology. The defence called an expert in toxicology as their only witness. [ 6 ] This trial occupied approximately 20 days consisting of applications, viva voce evidence, and extensive submissions by both counsel.

I do not intend to reference all evidence and submissions in these reasons; however, I have carefully considered all of it. Civilian Witnesses at Collision Scene [ 7 ] The Crown called a number of civilian collision witnesses to give evidence: Erin Langalands, Devon Elford, Niall McGarvy, Lisa Somerville and Gurdaz Dhaliwal.

I approach the evidence of these witnesses with caution as their opportunity to make observations of vehicles lasted only a few seconds prior to the collision. [ 8 ] At approximately 4:00 p.m. on March 29, 2020, Erin Langalands and Devon Elford were walking eastbound on the sidewalk of 56 Avenue on the north side of the street. They both heard a loud exhaust sound from passing vehicles. The sound caused Ms. Langalands to look and she observed a red vehicle going by fast in comparison to other vehicles. She is unable to estimate the vehicle’s speed.

She lost sight of it as it went over an overpass east of their location. She also remembered another vehicle eastbound about 10 seconds behind the red vehicle. Within 10 to 20 seconds she heard a loud crash and ran eastbound towards the sound. When she arrived at the collision scene she saw a woman talking to the person in the driver’s seat of the red vehicle. The police arrived shortly after. She did not see the red vehicle swerving. [ 9 ] Mr. Elford vaguely remembers a red muscle car and a brown Civic that he lost site of as they crested the overpass about 100 meters ahead of his position.

He then heard screeches and a loud bang, saw smoke and debris on the other side of the overpass. He called 911 and ran to the collision scene. There were already several people there aiding the occupants of the two vehicles. It appeared to be a head-on collision. He saw the Civic in the Church parking lot to the north of 56 Avenue, and noted a south Asian male in his fifties associated to this vehicle. He did not see this person go near the other vehicles. The Civic left the scene.

He did not see anyone get out of the red vehicle. [ 10 ] Niall McGarvy was with a friend walking northbound on a trail on the south side of 56 Avenue. At a distance of 100 to 150 meters from 56 Avenue he heard a loud vehicle exhaust noise, and observed a passing red vehicle travelling at a high rate of speed. He knew the speed limit to be 50 km/h. He said to his friend, “what an idiot”, referring to the driver of that loud vehicle. He then heard tire screeches, looked up and saw a collision between the red vehicle and a white minivan.

From his position looking up at the overpass he only saw the red vehicle above its tires, and there were also some trees obstructing his view. He only observed the red vehicle for one to two seconds before the collision. He does not recall seeing any other vehicles near the red vehicle. He did not see the red vehicle swerve before the collision. He observed the minivan fly into the air vertically. He sprinted towards 56 Avenue to see if anyone needed assistance. [ 11 ] At the collision scene, Mr. McGarvy observed a female trying to open the driver’s door of the red vehicle but it did not open.

The only occupant of the vehicle was in the driver’s seat. The occupant had blood on his head, appeared dazed and said something that was unintelligible. He observed vehicle fluids on the roadway. The police attended. It appeared to him that the collision was in the westbound lane of 56 Avenue, as he did not see the minivan move into the eastbound lane. The front end of the red vehicle was heavily damaged and there did not appear to be a lot of legroom for the occupant. He did not observe anyone leave the red vehicle.

It took him about 30 seconds to run from his position on the trail to the collision scene but he did not have a continuous view of the red vehicle. He cannot say for certain that no one left the red vehicle after the collision. He observed two people on the north side of 56 Avenue running towards the collision scene. He also recalled an older East Indian male but he does not recall what that person did. [ 12 ] At around 5:00 p.m., Lisa Somerville was driving her vehicle westbound on 56 Avenue. There was a white minivan about two car lengths behind her. She observed two vehicles eastbound where the road merges.

One vehicle was a red sports car and the other a brown Civic. These vehicles were beside each other, maybe one a little ahead of the other. She moved over to her right since the red sports car that was eastbound was speeding into her westbound lane of travel. In her rear view mirror she saw this vehicle collide with the white minivan that was travelling behind her. There was one lane in each direction where the collision occurred. Her impression was that the two vehicles eastbound were trying to get ahead of each other at the merge.

After the collision she pulled over and went to assist the driver of the white minivan. The driver of the red vehicle had a lot of blood on his face. She does not know why the red vehicle came into her lane of travel. She also observed a white vehicle eastbound on 56 Avenue in front of the red vehicle. She agreed that she told a police officer that the red vehicle had no time to break to avoid hitting the white car ahead of him, and the civic was beside him, and maybe the red vehicle was trying to get around the white vehicle in front of him.

[ 13 ] Gurdaz Dhaliwal testified that he witnessed a collision on Sunday March 29, 2020 that involved an orange GTO that he was familiar with. Mr. Dhaliwal was driving a blue and black Suzuki Sidekick eastbound on 56 Avenue, east of the Langley Bypass; it was dry and cloudy outside. He is familiar with the road, as he drives it often. It was around 3:45 to 4:00 p.m. There are two lanes eastbound after the Langley Bypass and the speed limit is 50 km/h he believes. There is a bridge that goes over a creek. The Langley Secondary School is a half mile to the east. He was driving at 45-55 km/h.

Before the merge lane he saw in his side mirror an orange vehicle 100 to 150 yards behind him coming up from behind quite fast. He continued driving and heard a loud crash, and saw a white flash behind him in his mirror. He did not recall seeing other vehicles behind him. He believes there is one lane in each direction over the bridge. He was in shock after the collision and continued to drive home. He went back to the collision scene later in the day, phoned the Langley RCMP, and went in the next day to give a statement. He did not see any reason for the orange vehicle to drive into the oncoming lane of travel.

He is familiar with the orange vehicle as he had seen it before. It is the only GTO classic in Langley that he is aware of. He has a classic vehicle himself and has friends who are collectors. He met the accused and his twin brother, and believes they work in the commercial vehicle inspection area. He associates the vehicle to Harminder Sakhon. [ 14 ] In cross-examination, Mr. Dhaliwal testified that he has no colour blindness diagnosis. He had seen the orange vehicle before the day of the collision. He gave his statement to the police on March 31, 2020, and this was the day after the collision.

He agreed that he did not tell the officer that he was familiar with the orange vehicle or that he knew the accused and his twin brother. The first time he mentioned this was at a pre-trial interview with the Crown. Over the bridge there is a single lane in each direction, the two lanes eastbound ended before the bridge. He recalls that the collision was on a Sunday. As he continued to drive he saw a flash of a white car in the westbound lane and saw the orange vehicle in the oncoming lane. He did not call 911 before or after. He did not have his phone with him.

He was in shock after the collision, as one does not witness a head-on collision every day. He went home to lay down for a while. It is not possible that there are two lanes eastbound going over the bridge. Amanprit Kaur Akali [ 15 ] Ms. Akali testified that she is 63 years old and was the driver of the Honda Pilot involved in the collision. She has little recollection of how the collision occurred. She did not see the vehicle that struck her until the collision and she blacked out. She suffered injuries as a result of the collision. She suffered a broken ankle that required surgery to repair.

She also suffered pains and bruises to her entire body. She attributes a recent right shoulder surgery to a rotator cuff injury suffered in the collision. She also suffered an injury to her head. Ms. Akali did not produce any medical records from the hospital or other treatment providers. She has been off work as a cafeteria assistant since the date of the collision due to pain in her legs and hips. In cross-examination, Ms. Akali denied pre-existing pains and stated that she was 100 percent okay prior to the collision. Ms. Akali denied that some of her injuries were caused by previous accidents, work, or age.

Paramedics [ 16 ] Timothy Lockwood testified that he is employed as an advanced care paramedic. On March 29, 2020, he was working with Mackenzie Corlett. They received a dispatch at 4:07 p.m. and attended a two vehicle collision on 56 Avenue. He attended to the occupant of the driver’s seat of the red vehicle. The occupant was alert and indicated injuries to his legs. Lacerations and abrasions to the occupant’s face, chest and abdomen were noted. The occupant was given pain medication including fentanyl through an IV and subsequently extracted from the vehicle onto a gurney.

From there he was placed into an ambulance. While in the ambulance and treating the occupant, he observed a smell of alcohol from the occupant’s exhaled breath. Prior to observing the smell of alcohol, he was advised by Mr. Corlett, that Mr. Corlett had noted a smell of alcohol on the occupant. No other indicia of impairment were noted. The occupant was alert, oriented and co-operative. The ambulance drove to the waiting air ambulance where other paramedics took over. [ 17 ] Mackenzie Corlett testified that he is employed as an advanced care paramedic.

On March 29, 2020, he was working with Timothy Lockwood and attended a motor vehicle collision on 56 Ave. He attended to the occupant of the driver’s seat of the red vehicle who appeared to be pinned in the vehicle. He assisted with the extrication of the occupant from the vehicle, including sliding him out of the vehicle onto a spine board, and then into the ambulance. Mr. Corlett observed an odour of liquor from the occupant. He believed the odour was most likely emanating from the occupant’s mouth but he does not have a distinct memory of this.

He obtained this odour both outside in the ambient air and in the ambulance. Police Officers [ 18 ] Cst. Lisa Yeo is employed as an officer with the RCMP. On March 29, 2020, she was in full uniform driving a police vehicle eastbound on 56 Avenue, Langley, when she was flagged down by a civilian. She observed a collision scene approximately 100 yards east of the overpass. She called it into dispatch. It appeared to be a head-on collision in the westbound lane. She attended to the occupant of the driver’s seat of the red GTO. The occupant appeared to be trapped as the engine block was pushed in; he was moaning.

There were no other occupants of the vehicle. She told him to stay where he was. She observed that the woman in the Honda Pilot appeared to be in shock. There are two lanes eastbound over the overpass but there is a merge into one lane after the overpass. At the collision scene there is one lane in each direction. The dispatch file was created at 4:07 p.m. It took some time to extricate the occupant of the red GTO from the vehicle. [ 19 ] Cst. Clair Brown is employed with the RCMP. She attended at the collision scene at 4:10 p.m.

She observed the occupant in the red GTO’s driver’s seat to be a south Asian male, appeared to be in his 30s, with facial hair, he was moaning in pain. Fire and ambulance personnel attended. The vehicles had severe front-end damage, and the air bags on the Honda Pilot had deployed. [ 20 ] Cst. Navrash Dhillon is employed with the RCMP assigned to the Integrated Collision Analysis and Reconstruction Services (“ICARS”). He has Level 2 training in accident reconstruction. On March 29, 2020, he attended the collision scene at 5:52 p.m. The occupants of the vehicles were no longer on scene. [ 21 ] Cst.

Eric Willems is with the RCMP. At the collision scene he observed the fire crew removing occupants of the vehicles. The Jaws of Life was used to remove the doors of both vehicles. The occupant of the red vehicle was a south Asian male, middle aged. He did not get close to this person and had no direct dealing with him. He prepared a sketch of the scene.

[ 22 ] Cst. Allan Weekes is with the RCMP traffic services. He attended the collision scene at 4:09 p.m. He attended to the woman in the white vehicle. This woman was incoherent and in shock, airbags had deployed; she could not tell him about her injuries. She mentioned to him that a vehicle crossed the centre line and she did not know why. Medical personnel came on scene and he stepped back. He did not observe any apparent injuries. He broke a vehicle window to get into her vehicle. He took some preliminary photographs of the scene at 4:24 p.m. [ 23 ] Cpl. Barry Nishida is with the RCMP traffic services.

He attended the collision scene and took photographs. It appeared to be a head-on collision between two vehicles. He attended today to the RCMP exhibits locker and retrieved a box that was cold and felt like it had been stored in a freezer. The label number on it is 202010-003390. There is a smaller label indication of 2020-04-22 Forensic Lab Edmonton Alberta. Inside the box there is a sealed bag containing five vials of blood. He also retrieved from the Master File, where original copies are kept, a Certificate of Analysis.

The photographs he took depict some faded yellow lines on the overpass indicating that the position of the centre line changed at some point in the past. [ 24 ] Cpl. Glen Shippit is with the RCMP. He attended the collision scene at 4:39 p.m. He observed two vehicles with very bad front- end damage. There was a large debris pattern. It appeared to be a head-on collision. The GTO had both doors removed as it appeared that the occupant was trapped. He had no direct dealing with the male in the GTO. He requested ICARS to attend the collision. [ 25 ] Cst. Molita Staley is with the RCMP.

She was dispatched to the collision scene on March 29, 2020, at approximately 4:30 p.m. She observed paramedics attending to the person in the driver’s seat of the GTO. This person was later identified as Mr. Sakhon. She did not witness the extraction of this person. She took scene photographs (marked as Exhibits 11 and 12). She took a photograph of Mr. Sakhon prior to his transfer to the air ambulance (photograph 1849). She did not maintain visual continuity of him. She then attended at the Royal Columbian Hospital at 5:40 p.m.

On attending at the hospital she checked in with Emergency registration and was directed to the trauma room. Mr. Sakhon was on a bed in the trauma room. [ 26 ] At Royal Columbia Hospital, Cst. Staley took a photograph of Mr. Sakhon’s Driver’s License that was located on a nurse’s cart in the trauma room near where the patient was being treated. The Driver’s Licence indicates: Sakhon, Harminder Singh, DOB June 27, 1986, Address 661 216 Street, Milner, BC 42YOW9.

At the time, she did not compare the photograph on the Driver’s Licence to the person on the trauma bed, but is satisfied it was the same person. [ 27 ] Cst. Staley observed a lab assistant, Jessica Murphy, draw blood from Mr. Sakhon at 5:52 p.m. She counted five vials of blood taken. She observed stickers being placed on the vials. She observed these vials again on April 14, 2020 at 4:45 p.m., when given to her by Cst. Penney. The vials were double bagged with bio hazard stickers. She lodged them into the exhibits fridge and created a property tag number, and exhibit number 2011097b-1.

A civil employee is responsible for sending the exhibit to the lab. It would have been sent off on April 20, 2020. [ 28 ] On April 17, 2020, Cst. Staley observed Mr. Sakhon again at Langley Memorial Hospital and served a notice letter on him advising of his right to inspect his vehicle. It took her a second to recognize Mr. Sakhon as he had lost weight. She was satisfied that it was Mr. Sakhon based on previously observing his Driver’s Licence and speaking with him. However, she did not compare the photograph on the Driver’s Licence to him at that time. She observed Mr.

Sakhon again at his residence at 6611 - 216 Street, Langley, when she attended there to return exhibits to him. She does not recall the date of that attendance. She recognized Mr. Sakhon in the courthouse yesterday in the waiting aware outside courtroom 314, and identified the accused in the courtroom as Mr. Sakhon. Civilian Forensic Video Analysis [ 29 ] Lauren Mulcahy testified that she is a RCMP civilian forensic video analyst. The Crown did not apply to have her qualified to give expert opinion evidence.

She has conducted video frame analysis since October 2013 and had formal training in this area from courses taken at Indianapolis University and BCIT. [ 30 ] Ms. Mulcahy was requested by Cst. Sidhu to provide a frame rate for three segments of video taken from a Self Storage Depot at 20986 - 56 Avenue, Langley. She received a disc with a video file. The file format was AVI, and due to familiarity with security video footage, Ms. Mulcahy recognized that AVI was not the original proprietary format of the video. Accordingly, she made a request to Cst.

Sidhu for the original propriety AVE formatted version of the video. In response, Cst. Sidhu provided her with an AVE file and an Avigilon video player. [ 31 ] With this AVE file and software, Ms. Mulcahy was able to view the video and advance it frame by frame. She noted 20 unique frames per second for every segment she viewed. She did not observe any duplicate or missing frames. She demonstrated to the court how the analysis was performed. The time stamp on the video was 4:05. She was not sent the Avigilon system used to record the security video.

However, she testified that there cannot be any compression of the video file since there was no conversion from one format to another. The Avigilon system creates an AVE file, and she was given an AVE file. The Video Evidence [ 32 ] The video from the storage depot was marked as Exhibit 2 on this trial. The video can be advanced frame by frame using VLC software. When doing so, a blue jeep type vehicle consistent with Mr. Dhaliwal’s Suzuki Sidekick enters from the left, that is, eastbound on 56 Avenue, at 4:05:18, and exits to the right at 4:05:20 – taking 38 frames in total.

A red vehicle consistent with the red Pontiac GTO is the next vehicle eastbound. It enters from the left at 4:05:30, and exits to the right at 4:05:31 – taking 19 frames in total. A brown vehicle consistent with the Honda Civic enters from the left at 4:05:31, and exits to the right at 4:05:32 – taking 19 frames in total. At 4:05:40 a man and woman enter from the left walking eastbound on 56 Avenue on the north side of the road, and at 4:05:45 they both start running eastbound. The presence and movement of these two civilians are consistent with the evidence of Erin Langalands and Devon Elford as outlined above.

Accident Reconstruction Expert Debra Renae Hansen [ 33 ] Cpl. Debra Renae Hansen was qualified to give expert opinion evidence in the area of accident reconstruction. Her report was

filed as Exhibit 7. Her report outlines that the collision occurred in the 21200 block of 56 Avenue, Langley, BC, between the Langley Bypass and 213A Street. The posted speed limit is 50 km/h. Approximately 188 metres west of the collision, for eastbound traffic, there is a right lane ends sign. White painted arrows and dash lines on the roadway also indicate the transition from two lanes into one. At the collision scene travel is one lane in each direction, divided by a double solid yellow line. [ 34 ] In Cpl.

Hansen’s opinion, based on a number of factors including vehicle impact damage, the red GTO was travelling eastbound and crossed the yellow double solid line into the westbound travel lane where it encroached into the path of the Honda Pilot. At impact, the GTO was positioned fully within the westbound lane of travel while travelling eastbound. The vehicles collided head-on with each other, while slightly offset.

The roadway evidence suggests that the vehicles absorbed the impact of engagement causing the rear of the vehicles to rise off the ground; the vehicles minimally rotated and dropped as their front ends separated. [ 35 ] Security video was obtained by Cst. Sidhu from the Self Storage Depot located at 20986 – 56 Avenue. The camera faces north toward 56 Avenue. The GTO is observed travelling eastbound in lane #1 – the left lane. The collision occurred approximately 300 metres east of this location. From the video, Cpl.

Hansen determined tangible objects, or reference points, that could be forensically measured to establish a known distance travelled by the GTO in the camera’s view. [ 36 ] Video analyst Lauren Mulcahy identified the frame rate of the video to be 20 frames per second. She also provided still images from the video so the GTO’s position could be accurately determined at each of the reference points. A comparison of the four fixed images were made to a 3D scan of the area using a Leica ScanStation P30.

This is a 3-dimensional scanner capable of taking electronic point cloud measurements and digital images during a scan. The scanner was operated by Cst. Sidhu. It does have a margin of error. [ 37 ] The data obtained from the scanner was inputted to Faro Zone 3D software, a computer aided drawing program, to determine the distance travelled by the GTO from one point to another. From the distance travelled and the number of frames elapsed per second from the video, an average calculated speed is determined with the use of a formula.

Over a distance of 24.37 metres and a time of 0.75 seconds, the speed of the GTO ranged between 110 and 116 km/h. For the scanner to provide accurate measurements it must be calibrated. Cpl. Hansen made no note as to the last calibration of the scanner used by Cst. Sidhu. A member in their

section is responsible for ensuring the scanners are calibrated. The scanners are sent to Leica for calibration. Cst. Kaljinder Sidhu [ 38 ] Cst. Sidhu testified that he attended the collision scene on March 29, 2020 at 5:50 p.m. The scene was calm when he arrived. He is with ICARS and was working with Cpl. Hansen at the time. He made measurements and took most of the photographs of the scene of the collision and at the garage, as depicted in the ICARS Report marked as Exhibit 7. The weather was cloudy but clear and 11 degrees Celsius. The roadway was dry. [ 39 ] Cst.

Sidhu burned a copy of a video file received on a secure shared drive for forensic analysis to a CD. He did not obtain the video from the original source and did not play it. [ 40 ] On May 11, 2020, Cst. Sidhu used a Leica 3D scanner to take scans of the area captured by the video camera attached to a self- storage business. He explained how the scanner operated and the settings used. He explained the process of taking the raw data from the scanner, that is saved to a unique USB, and uploading it to a software program that produces the images. The scanner appeared to be working as expected.

He had only one issue in five years in working with this scanner and that was related to a battery failure. [ 41 ] In cross-examination, Cst. Sidhu testified that he does not know if the camera on the building of the self-storage business from which the video was taken had been repositioned between the date of the motor vehicle collision and May 11, 2020, when he attended. He received training in the use of the scanner. The scanner was new and only requires calibration every one to three years.

No additional steps were taken by him to verify the accuracy of the scanner’s measurement of distances, such as can be done with the use of target poles. Royal Columbian Hospital Records of Harminder Sakhon [ 42 ] The records of the Royal Columbian Hospital of Harminder Sakhon starting from March 29, 2020, were marked as Exhibit 25 on this trial. [ 43 ] The

summary of injuries suffered by Mr. Sakhon in the collision include numerous lacerations and abrasions, fractured nose, one rib fracture, pelvic fractures, a L2 transverse process fracture, right midshaft femur fracture and right ankle fracture. [ 44 ] Blood was collected from Mr. Sakhon at the hospital and tested for ethanol. The result was 48.1 millimoles of alcohol in one litre of specimen. Lab Assistant Jessica Murray [ 45 ] Jessica Murray is a lab assistant at Royal Columbian Hospital. Her primary role is to take blood samples from patients at the hospital.

She has no independent recollection of taking a blood draw in relation to the matter before the court. She testified as to her general practice and identified her original signature on some of the vials of blood included in Exhibit 23. On some of these vials the name of Sakohn, Harminder is legible. [ 46 ] In her practice, Ms. Murray only takes blood from patients she is able to identify. Identification is confirmed through the bracelet on the wrist of the patient prepared by registration, and through verbal confirmation with the patient.

The specific blood tests are ordered by doctors and labels are printed with the test order and the identification details of the patient. Once the blood is drawn the label is adhered to the vial of blood and she signs and notes the time of the draw. The samples are placed in a biohazard bag, then in a hard shell, and delivered to the hospital lab by way of a pneumatic or vacuum shoot. At the lab the bar code on the tube labels are scanned into the computer and the vials are loaded onto an instrument for the samples to be analyzed.

[ 47 ] Ms. Murray testified that different tubes have different additives. Prior to the blood being drawn, she uses an alcohol swab to disinfect the area and waits 10-15 seconds for the area to dry. She visually ensures the area is not wet prior to injecting the needle for the draw. The swab is 70% isopropyl and she is not aware of what comprises the remaining 30%. She is not responsible for confirming the expiry date on the swabs. She described the various tubes and how they are identified by their length and colour of tops.

After testing by a lab technician the tops could be replaced with a different colour top, and sometimes blood is transferred into additional tubes, depending on the required or additional tests. The tubes could act differently if expired. The vacuum will not be as strong, and if that occurs it will be discarded. It will stop filling half way. This occurs very rarely. [ 48 ] Ms. Murray examined the vials of blood marked collectively as Exhibit 23. The vial with the lavender top, is a shorter tube, has her signature and collection time of 17:52.

The label is faded but she can read that the test is for cbc hematology, with EDTA additive. She can also read “06 1985” and letters “har” and “sa”. She does not know what EDTA is or whether is has an expiry date. However, it is unlikely any tubes are expired since they go through such a high volume of tubes. The tube is filled to just under half so it is higher than required as a minimum draw. This tube now has a plastic seal on it that she did not put on. Tubes with an EDTA additive must be inverted 8 to 10 times after the draw.

Her practice is to not count how many times she inverts the tube as she does it by muscle memory. [ 49 ] The vial with the clear top does not have the original colour top; it would have been opened and replaced. This tube is for a blood type test. She can read the name “Sakhon, Harminder” on the label. [ 50 ] The short tube with the green top has a legible label. The collection time is 17:52 and the date is 29/03. It also has identification information: “PHN 9101896534. DOB June 27, 1986, Sakhon, Harminder. [ 51 ] The tube with the blue top has a substance in it.

This is a plasma separator tube used for chemistry work. The label has her signature and collection time of 17:52. She can read: “Sakhon, Harm”, the rest is faded. There is no plasma in the tube. Sometimes the plasma is transferred to another tube for testing. [ 52 ] The empty tube with OSMO written on it does not have any of her markings on it. She did not handle that tube. The techs would have transferred blood into that tube and created a label for it. The label reads: “RCO2911034 Sakhon Harminder 3/29/2020” 17:52. Toxicology Experts [ 53 ] The Crown called two forensic toxicology witnesses, Dr.

Ana Brown and Tanya Ames, and the accused called one, Suzanne Perry. All three were qualified to give expert opinion evidence in various aspects of the process related to the analysis of blood samples for ethanol content. The evidence in chief and cross-examination of these witnesses was extensive due to the myriad of issues raised by the accused in challenging the reliability of the blood alcohol results, and occupied almost six days of court time. I do not intend to summarize all of the evidence given the myriad of issues canvassed but I have considered it all, and in the analysis

section below I will address some of the specific issues and concerns raised by counsel in their submissions. Tanya Ames [ 54 ] Tanya Ames was qualified to give expert opinion evidence in the analytical procedures utilized in the analysis of samples for alcohol and other similar volatile compounds. [ 55 ] Ms. Ames is employed as a forensic toxicologist with the RCMP since March 2014. Her employment includes analyzing blood for volatiles including ethanol, preparing reports and certificates of analysis. She has a Master’s Degree in molecular biology and genetics. [ 56 ] By reference to her file, Ms.

Ames testified that the blood vials herein arrived at the Edmonton Lab on April 4, 2020. The exhibits custodian entered the exhibits into the computer system and placed the vials into a fridge. On June 10, 2020, Ms. Ames took the exhibits from the fridge and began her examination. She made notes of her observations into a temporary file she created on her computer. [ 57 ] A yellow liquid was found in the plastic bag containing the vials causing all of the vials to be wet, and making some of the vial markings difficult to read. She dried the vials and took a photograph of them.

The photograph is marked as Exhibit 20. The vial with the lavender Hemoguard cap was the most suitable for analysis as it appeared to contain whole blood. The blood in this vial looked normal, and had no unusual characteristics. She would not expect any bacteria in the blood if it was collected in a sterile manner. Also, if there was bacteria it would look different and the chromatography results as depicted in the graphs marked as Exhibit 16 would pick it up. [ 58 ] A Headspace Gas Chromatography instrument is used to analyse the blood sample. How the instrument operates is described in detail by Ms.

Ames in an email marked as Exhibit 21. Ms. Ames did not have a specific memory of how she handled the particular sample of blood herein, but spoke to her practice and expressed absolute certainty that all required policy and procedures were followed by her, and is confirmed by review of the file and results obtained as set out in the chromatograms marked as Exhibit 16. [ 59 ] The Headspace Gas Chromatography instrument used by the forensic lab produces its results on chromatograms, which in essence are graphs displaying peaks that represents the various volatile compounds tested for.

The instrument tests for seven common volatile compounds including ethanol, acetaldehyde, acetone, iso-propanol and n-propanol. Prior to testing the subject blood sample, a standard is used to ensure the instrument is able to identify a time and area measurement for each compound in each of the two channels of the instrument, Channel A and Channel B. The area measurement is then converted into a mg%.

The subject sample is run twice though each channel. [ 60 ] A question discussed by all three experts is the significance of the detection of acetaldehyde and acetone on all four subject test results, and iso-propanol on one of the four chromatograms. Dr. Brown and Ms. Ames are of the opinion that the small peaks for these compounds are of no significance or concern, and additional compounds have no impact on their opinion as to the validity of the ethanol concentrations found. Ms.

Perry is of the opinion that these additional compounds are indicative of the blood sample tested being unreliable due to fermentation in the tube that occurred over the 74 days from the date of collection at the hospital to the date of testing

at the forensic laboratory. Fermentation is caused by microbes consuming substrate such as glucose which is found in blood, and the by- product is the production of ethanol, thereby giving a falsely elevated concentration of ethanol when tested. [ 61 ] Ms. Ames opined that the presence of iso-propanol is not proved since it only appeared on one of four Chromatograms. The peaks for acetone and acetaldehyde raise no concern as to the quality of the sample tested. [ 62 ] Ms. Ames prepared and signed two reports, marked as Exhibits 15 and 22.

The report of June 17, 2020, Exhibit 22, indicates a finding after analysis that the sample marked by the forensic laboratory as Exhibit B-1-1, was found to contain 194 milligrams of ethyl alcohol in 100 millilitres of blood (194 mg%), plus or minus 2 mg%. [ 63 ] The report of Ms. Ames dated April 22, 2022, Exhibit 15, expresses an opinion on the accused’s BAC at the time of driving extrapolating back from both the hospital and forensic laboratory results. [ 64 ] The accused’s hospital toxicology results are before the court as part of his Royal Columbian Hospital records, marked as Exhibit 25 on this trial.

The hospital analyzed a sample from a vial of blood plasma or serum with a result of 48.1 mmol/L ethanol. (mmol/L refers to millimoles of alcohol in 1 litre of specimen.) [ 65 ] Whereas, as noted above, the forensic laboratory analyzed a sample from a vial of whole blood, and determined the BAC measured by milligrams of alcohol in 100 millilitres (mg%) of specimen.

Accordingly, a calculation is required to convert a BAC measured by mmol/L of blood plasma or serum, into the equivalent of BAC measured by milligrams of alcohol in 100 millilitres (mg%) of whole blood. [ 66 ] The hospital BAC result of 48.1 mmol/L is equivalent to 222 mg%. A further calculation is needed to determine whole blood concentration. Ms. Ames states in her report of April 22, 2022, Exhibit 15: Blood plasma and serum have higher water content than whole blood.

Since alcohol is water soluble and distributes in the body according to the water content of the tissue or fluid, blood plasma and serum alcohol concentration results will be higher than the corresponding whole blood alcohol concentration. An alcohol ratio range is used to estimate the whole blood alcohol concentration based on the blood plasma or serum alcohol concentration. The whole blood alcohol concentration at 1752 hours (time of blood collection) is estimated to be between 177 and 201 mg% based on a blood plasma or serum concentration of 222 mg%.

This will be used as a starting point for the estimate of the BAC at the time of the incident based on the hospital result below. [ 67 ] Extrapolating back to the time of driving, the forensic laboratory result of 194 mg% extrapolates to 212 to 229 mg%, and the hospital result of 177 to 201 mg% extrapolates to 195 to 237 mg%. [ 68 ] Ms.

Ames’ calculation is based on certain assumptions including: peak BAC was attained at or prior to the time of the driving incident; no alcohol was consumed after the driving incident and prior to the time the blood sample was collected at the hospital; and, the elimination rate of alcohol from the body is 10 to 20 mg% per hour. [ 69 ] In her report of April 22, 2022 (Exhibit 15), Ms. Ames opines that, “all individuals, no matter what their tolerance to or experience with alcohol, are impaired in their ability to operate a motor vehicle at 100 mg% and higher.” Ana Brown, Ph.D. [ 70 ] Dr.

Ana Brown was qualified to give expert opinion evidence in the areas of: the physiology and pharmacology of alcohol; the absorption, distribution and elimination of alcohol from the body; the effects of alcohol on the body with respect to behaviour and motor function; analyzing biological and other suspect material for ethanol and other common volatiles including laboratory practices and the issuance of certificates; and, the appropriate conversion of alcohol content from blood plasma or serum to whole blood. [ 71 ] Dr. Brown has a Ph.D. in chemistry from the University of Ottawa.

Since 2017, she has been employed with the RCMP National Forensic Laboratory Services, Toxicology Services. After initial training and testing Dr. Brown was designated an Analyst as per s. 320.4 (b)(ii) and (

c) of the Criminal Code . She is designated as an alcohol specialist within toxicology services. [ 72 ] In her evidence, Dr. Brown adopted the opinions of Ms. Ames, as set out in her reports. In her opinion, on reviewing the Chromatograms of the testing at the RCMP laboratory of the seized blood sample (see Exhibit 16), there is no evidence of contamination, and in particular no iso-propanol detected. Further, there is no indication of ethanol/alcohol created after the blood was drawn at the hospital. [ 73 ] Dr. Brown gave extensive evidence addressing the issues raised in the defence expert opinion report of Ms.

Perry. Regarding the chromatograms, Dr. Ames opined that no iso-propanol was confirmed since it only appeared in the one of the four channels. [ 74 ] Regarding acetone, Dr. Brown opined that it is not an unexpected finding, as it is a marker of the breakdown of protein, not a marker of contamination of the sample. There is no peak noted for n-propanol, which is a marker for putrefaction or degradation of the sample. [ 75 ] Regarding the finding of acetaldehyde, it is naturally occurring in the breakdown of alcohol and normal to see along with higher concentrations of ethanol. If the sample was contaminated, Dr.

Brown would expect other identified peaks on the chromatograms. Acetaldehyde could be the product of fermentation but Dr. Brown assumes sterile conditions on collection of the sample. [ 76 ] In cross-examination, Dr.

Brown agreed that it is possible that the quality or suitability of the blood sample or analysis could be impacted by a number of factors including: the manner in which the blood was drawn and the use of alcohol based swabs; the type of vial used for storage and whether it contains a preservative (the lavender capped vial at issue herein, did not contain a preservative); storage temperature controls; contamination by volatiles in collecting samples or after; the impact of oxidation; and, putrefaction or fermentation of the blood while stored for 74 days from the time the blood was drawn until it was analyzed at the forensic laboratory in

Edmonton. Dr. Ames is not aware of any evidence to suggest that the sample of blood tested suffered from any of the theoretic possibilities of contamination raised in cross-examination. Suzanne Perry [ 77 ] Suzanne Perry was called to give evidence on behalf of the accused. Ms. Perry has a Masters of Science and wrote her thesis on volatile compounds identification and quantification using gas chromatography and mass spectrometry. Ms. Perry’s qualifications are set out in her curriculum vitae marked as Exhibit 32. [ 78 ] From 1994 to 2014, Ms.

Perry developed and worked at the University of British Columbia at the Mass Spectrometry Core Facility as the manager and research scientist. Ms. Perry also has training from BCIT in Venipuncture and Phlebotomy. Since 2014, Ms. Perry has provided expert opinion analysis in the areas of analytical chemistry and phlebotomy. Ms. Perry has been qualified to give expert opinion evidence in 73 trials and hearings in the United States and three Canadian provinces. Based on Ms.

Perry’s educational background and practical experience, she was qualified to give expert opinion evidence in all aspects related to the collection of blood samples and testing of samples for blood alcohol concentration. [ 79 ] Ms. Perry’s opinion report is marked as Exhibit 33 herein. In Ms. Perry’s opinion, the enzyme based “colormetric screening” instrument used at hospitals to test for ethanol is not used in forensic laboratories and is inherently unreliable.

These instruments are unreliable due to, “false positives and negatives, cross reactivity and interference from lipids, lactate, hemolysis and other alcohols, lack of linerarity in the quantification, only a single subject sample is tested…and it cannot accommodate whole blood as a specimen, to name a few.” [ 80 ] A more specific concern in Ms. Perry’s opinion is the accused’s lactate level as determined by blood chemistry at the hospital. The normal range is noted to be 0.5 to 2.20 mmol/L and the accused level is noted to be high at 3.5 mmol/L. Ms.

Perry opines that lactate is a known compound that produces significant false positives results in clinical ethanol enzyme based assays. Ms. Perry does not opine as to why a false positive for ethanol remains a concern, considering the Headspace Gas Chromatography instrument used at the forensic lab also detected a significant volume of ethanol. Ms. Perry further opines that the hospital ethanol result of 48.1 mmol/L is not scientifically reliable due to the absence of a margin of error, or uncertainty measurements and confidence intervals, which are required for all scientific measurements. [ 81 ] In Ms.

Perry’s opinion the sample of blood tested by the forensic lab was not suitable for testing and from a scientific perspective any result from testing should be considered unreliable.

The concerns include: • it is unknown whether the collection tubes were expired as the dates on the tubes cannot be read; • the lavender tube of whole blood tested by the forensic laboratory contained no preservative and was not a Criminal Code approved grey cap tube; • the tube was previously opened at the hospital for their analysis and subject to contamination; • the chain of custody of the tubes is not established over the 74 days between the time of collection and testing at the forensic laboratory; • it is unknown whether the tubes were properly refrigerated at the hospital or in transit from the hospital to the laboratory in Edmonton; • the possible mishandling of tube caps at the hospital resulting in possible contamination or cross-contamination; • the possible contamination of the sample by the yellow tinted liquid that had spilled into the biohazard bag that contained all five tubes; • the volume of blood in the tubes is not noted; • the opportunity for tampering during transit; • improper swabbing technique in cleaning the area of puncture to collect the blood and possible contamination by the alcohol based swab used; • possible interaction of the accused’s blood with administered medication and IV fluids; and • the tourniquet on the arm was left on too long prior to blood collection. [ 82 ] Based on all these deficiencies in the process of blood collection and handling, the specimen of whole blood tested by the forensic laboratory should be considered compromised and unreliable due to the risk of sample degradation, putrefaction, and fermentation caused by microbes leading to the production of ethanol and falsely elevated BAC results.

Ms. Perry opines that there is evidence of contamination of the sample tested at the forensic lab by reference to the chromatographic results shown in Exhibit 16. [ 83 ] Ms. Perry also takes issue with the unproven assumptions, such as, a normal drinking pattern and that peak BAC was attained at the time of driving, in the back calculation from time of collection to time of driving, as discussed in the report of Ms. Ames. Ms.

Perry opines that the accused, “was not demonstratively in the Elimination phase and was more likely to be in the Absorptive and Distribution phase for which retrograde calculations are not allowed.” (p.19) I note that this particular opinion is found in a stand-alone paragraph and not explained. There is no drinking pattern evidence before the court. Ms. Perry was the only defence witness. [ 84 ] Ms. Perry opines that the BAC results are unreliable as they are inconsistent with clinical signs and symptoms of impairment.

With a BAC in the range of 200 mg% associated symptoms include excitement and confusion, slurred speech, vomiting, and staggering

gait. However, Mr. Sakhon was described as coherent and responsive, with a Glasgow Coma Score of 15/15. [ 85 ] Near the end of cross-examination, Ms. Perry was asked why her opinion report fails to address the significance of the two BAC results, one from the hospital and the other from the forensic laboratory, appearing to support each other. Ms. Perry answered that the two are apples and oranges and the similar results may be the product of “serendipity”.

Submissions on behalf of the accused [ 86 ] Counsel for the accused submits that the Crown has failed to prove beyond a reasonable doubt the offences charged and, as such, the accused must be acquitted. [ 87 ] Regarding the offence of dangerous operation causing bodily harm, counsel submits that from the totality of the evidence a reasonable conclusion is that the accused was forced into the oncoming lane of travel to avoid an imminent collision with a merging car from the lane to his right that was ending. The accused has no obligation to provide an explanation for the alleged dangerous driving.

The burden rests with the Crown to prove beyond a reasonable doubt that the accused’s driving was dangerous and to disprove any reasonable possibilities that arise from the totality of the evidence. [ 88 ] The evidence does not amount to dangerous driving, but “rather simple carelessness, a mere departure from the norm, and there is a reasonable doubt that there were foreseeable and immediate risks.” (para. 11, Defence Written Argument) The defence theory is that the accused was trying to avoid an imminent collision. Considering the civilian evidence and the roadway, the risk was not foreseeable.

There was nothing dangerous about the speed of the accused’s vehicle. [ 89 ] Counsel submits that the evidence of Ms. Sommerville essentially described an impossible scenario, “whereby Mr. Sakhon would have either been struck by the Civic to his right, would have rear-ended the white SUV in front of him, or would have had to enter the oncoming lane of traffic in the hopes of avoiding a collision that was imminent and out of his control. This is simply not evidence of dangerous driving.

It is a real-life trolley problem.” (paras. 78-79 Defence Written Argument) Counsel submits that the circumstantial evidence in this case is consistent with other rational conclusions other than dangerous driving. If anyone was driving dangerously, it was the operator of the Civic who was in the lane that was ending and required to yield the right of way. Also, Ms. Akali was speeding westbound, driving at between 73 to 75 km/h within seconds prior to the collision. [ 90 ] Counsel for the accused submits that the accident reconstruction evidence of Cpl.

Hansen that relies on video frame rate speed and determined a speed of between 110 to 116 km/h 300 metres away from the scene of the accident, is unreliable for several reasons.

These reasons include: an unknown margin of error in the video frame rate; possible compression of data in the process of retrieving the video file; unknown last calibration of the 3D Scanner; the measurement of speed occurred over only 0.75 of a second 300 metres away from the collision; the 300 metres estimate might be unreliable since it was obtained by Google Maps, which is hearsay and unproven; and, the camera from which the video was obtained could have been moved from the date of the accident until the 3D scanner was employed to take measurements that rely on the angle of the camera in part.

The onus was on the Crown to call a witness from the storage depot to testify as to whether the camera had been moved or not. [ 91 ] Counsel submits that the Crown has failed to prove the alleged dangerous driving resulted in bodily harm to Ms. Akali. Counsel submits that Ms. Akali was an unreliable witness. She claimed suffering an injury to her foot but could not describe how her foot was injured in the collision. Ms. Akali was speeding at the time of the collision. The Crown has failed to prove or explain the degree to which Ms.

Akali’s own unlawful driving behaviour caused or contributed to her injuries. “There is no evidence that she would not have come out of the collision with nothing more than transient injury had she not been travelling at the speed she was at, had she been keeping an adequate lookout, and had she not been distracted.” (para. 175, Defence Written Argument) [ 92 ] Further, there is reasonable doubt that Ms. Akali was wearing a seatbelt, as such, “there is reasonable doubt that her injuries were caused by the alleged impairment or dangerous driving of Mr.

Sakhon and not her own negligence in not wearing the belt.” (para. 177, Defence Written Argument) [ 93 ] Regarding the impaired operation charge, counsel for the accused submits that the Crown has not proved impairment and not proved impairment causing bodily harm. The evidence of the paramedics of observing a smell of liquor from the accused is unreliable and not observed by any other witness. Further, an odour of liquor is not proof of impairment. There are no other indicia of impairment noted and the accused was described as alert, oriented and co-operative.

Counsel submits that even assuming the BAC readings are accepted, the Crown has still not met its burden of proving impairment by alcohol beyond a reasonable doubt. [ 94 ] Regarding the offence of being over the legal limit of 80 mg% within two hours after ceasing operation, counsel submits that there are a number of issues that result in the Crown having failed to prove the offence beyond a reasonable doubt. These issues are as follows: 1. The time of the collision in unclear and inconsistent; 2.

There is an absence of continuity of the blood samples and the blood inside the vials while at the hospital laboratory, and this includes consideration of the integrity of the samples; 3. There is a possibility of interference with the blood samples while at the hospital laboratory; 4. The Crown has not proven the samples were not fermented or had not degraded between collection and testing at the NFLS laboratory; 5. The analysis conducted by the NFLS laboratory is unreliable; 6. The testing of the samples done at the hospital cannot be proven to be reliable;

7. There is a reasonable doubt on the basis of competing expert reports; 8. The certificate evidence does not meet the standard necessary to prove the case beyond a reasonable doubt, as the preconditions to the admissibility of the Certificate are not met. (para. 200, Defence Written Submission) [ 95 ] Counsel submits that the presumption in s. 312.31(2) regarding the validity of BAC analysis, does not apply as the sample collected at the hospital was not taken into an approved container.

Section 312.31(2) must be read in context, and that context includes s. 320.28(7) that states that a sample of blood shall be received into an approved container that shall be subsequently sealed. Counsel further submits, that even if the presumption applies there is clear evidence to the contrary as that term is defined in the Criminal Code .

Submission on behalf of the Crown [ 96 ] Counsel for the Crown submits that the Crown has met its burden to prove each element of each offence to the standard of proof beyond a reasonable doubt. [ 97 ] Regarding the time of driving, paragraph 2 of the Admissions of Fact (Exhibit 31), states that the video from the Self Storage Depot captures footage between 4:04 and 4:06 p.m. The court can conclude that this footage captures the vehicles at issue, moments before the collision. Further, Cst. Yeo arrived on scene at 4:07 p.m. just moments after the collision, and created a file that recorded the time.

This is more accurate than random estimates of time by civilians. [ 98 ] The Crown is not relying on a certificate of analysis to prove BAC as the toxicologist, Ms. Ames, was called to give evidence and the results of her testing is contained in Exhibit 22. The Crown is still entitled to rely on the presumption in s. 320.31(2) and there is no evidence to the contrary to rebut the presumption that the analysis was performed properly. [ 99 ] Counsel submits that Ms. Ames and Dr. Brown presented as experienced, knowledgeable and impartial expert witnesses. Ms.

Perry’s evidence was abstract and theoretical, not concrete or real. Ms. Perry testified as an advocate on behalf of the accused. She failed to address the similarity of BAC results of the hospital and forensic laboratory, instead referred to them as “apples and oranges”, and “may just be serendipity with mathematical manipulations”. Ms. Perry made a number of assertions without a stated source. The evidence of Ms. Ames and Dr. Brown should be preferred over that of Ms.

Perry. [ 100 ] Counsel for the Crown submits that the hospital records independently prove, beyond a reasonable doubt, that the accused had a BAC well in excess of the legal limit at 17:52 on March 29, 2020, within two hours of the collision that occurred moments before Cst. Yeo arrived on scene and initiated the police file at 16:07. The results from the forensic laboratory corroborate the hospital BAC result. The opinion of Ms.

Perry that both the hospital and forensic laboratory results are compromised by lactate or fermentation, although the results are similar, is fanciful and speculative. [ 101 ] Regarding the impaired driving offence, counsel submits that the only reasonable inference from the evidence is that the offence has been proved beyond a reasonable doubt. The Crown relies on a combination of factors including the accused’s driving behaviour, the accused’s elevated BAC results (even if the accused had not reached peak BAC at the time of the collision), and Dr.

Brown’s unchallenged opinion that anyone over a 100 mg% BAC, regardless of tolerance level, would be impaired in their ability to operate a motor vehicle. [ 102 ] Regarding the dangerous driving offence, reliance is placed on civilian observations of excessive speed relative to traffic, the accident reconstruction analysis that includes the video from the Self Storage Depot, the smell of liquor from the accused’s breath that was observed by two paramedics, and elevated BAC readings which is relevant to the mens rea of dangerous driving.

Counsel submits that the evidence establishes that the accused was driving at a high rate of speed in tandem with a brown Honda Civic and made a dangerous decision to enter the oncoming traffic lane prior to striking a vehicle operated by Ms. Akali head-on. [ 103 ] The video from the storage depot can be advanced frame by frame using the VLC software. When doing so a jeep type vehicle consistent with Mr. Dhaliwal’s Suzuki Sidekick enters from the left at 4:05:18.554, and exits to the right at 4:05:20.404 – 38 frames in total.

A red car consistent with the red Pontiac GTO admitted to be involved in the collision enters from the left at 4:05:30.254, and exits to the right at 4:05:31.154 – 19 frames in total. A brown car consistent with the Honda Civic described by Mr. Elford to be driving within a few car lengths from the red muscle car, enters from the left at 4:05:31.354, and exits to the right at 4:05:32.254 – 19 frames in total. By reference to the number of frames, the red GTO and the brown car are travelling twice the speed compared to the vehicle that appears to be Mr. Dhaliwal’s Suzuki Sidekick. Mr.

Dhaliwal testified that he was travelling between 45-55 km/h. It can also be observed that the brown car appears to be travelling closer to the curb than the red GTO. According to the evidence of Cpl. Hansen the average speed of the GTO as it passed the Self Storage Depot was 110.34 to 116.9758 km/h. Cross-examination of Cst.

Sidhu did not challenge the accuracy of the measurements he obtained, and he clearly knew how to operate the laser scanner. [ 104 ] Counsel submits that the reconstruction evidence proves that the two vehicles struck each other head-on, and on impact, the GTO was positioned fully within the westbound lane of travel while travelling eastbound. The evidence establishes that Ms.

Akali was wearing her seatbelt at the time of the collision. [ 105 ] Counsel submits that the accused’s driving was objectively dangerous to the public in all the circumstances (the actus reus ), and in doing so the accused demonstrated a marked departure from the standard of care that a reasonable person would observe in the circumstances (the mens rea ).

General Principles of Law [ 106 ] There are two principles fundamental to every criminal trial, the presumption of innocence and the requirement that the Crown prove its case beyond a reasonable doubt. [ 107 ] The presumption of innocence remains with an accused throughout the trial. It is defeated only if, after considering all of the evidence, the court is satisfied beyond a reasonable doubt of the accused’s guilt. The Crown’s burden of proof beyond a reasonable doubt

applies to each essential element of each offence. [108] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or one based on sympathy for or prejudice against anyone.It is doubt based on reason and common sense, and one that logically arises from the evidence or absence of evidence. Beyond areasonable doubt is an exacting standard that is more than proof on a balance of probabilities but less than proof to an absolute certainty.As the Supreme Court explained in R. v.

Starr, 2000 SCC 40 at para. 242, it lies along that measure “much closer to ‘absolute certainty’than to ‘a balance of probabilities’”. Proof beyond a reasonable doubt is achieved if, after considering the totality of the evidence, thecourt is sure that the accused committed the offence charged or an included offence. [109] The credibility and reliability of the witnesses must be considered in this case, and in particular, the reliability of the civilianwitnesses to the collision. [110] The distinction between reliable evidence and credible evidence was discussed by Doherty J.A. in R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.) at page 6: Testimonial evidence can raise veracity and accuracy concerns. The former relates to the witness’s sincerity, that is, his or herwillingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony.The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the eventsin issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility.

When one is concerned with theaccuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is notcredible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however still be unreliable. Statutory Provisions 320.13

(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, isdangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous tothe public and, as a result, causes bodily harm to another person. 320.14

(1) Everyone commits an offence who (

a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination ofalcohol and a drug; (

b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal toor exceeds 80 mg of alcohol in 100 ml of blood;

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodilyharm to another person. 320.31

(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration ortheir blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to showthat the analysis was performed improperly.

Issue 1: Has the Crown proved identity of the driver of the red GTO as the accused before the court beyond a reasonable doubt? [111] Considering the totality of the evidence, I am satisfied beyond a reasonable doubt that the accused before the court, HarminderSingh Sakhon, was the operator of the red GTO at the time of the collision, and this conclusion is the only reasonable inference that canbe drawn from the evidence. [112] The identification evidence includes the following: • Civilians attended to the collision scene within seconds of the collision and observed no one leaving the red GTO; • Both vehicles had received significant front end damage and the doors of the GTO were removed to extricate the occupant fromthe driver’s seat; • The photograph of the person on the stretcher taken by Cst.

Staley was referred to by her as Mr. Sakhon; • A photograph of the BC Driver’s licence of the accused was taken by Cst. Staley and it is of the person identified in court asHarminder Singh Sakhon; and, • Cst. Staley identified Mr. Sakhon as the person she had dealt with as the suspect in the investigation. On March 29, 2020, sheobserved him at the accident scene and at the Royal Columbian Hospital, and then met with him at Langley Memorial Hospital, and athis residence on subsequent dates. Cst.

Staley identified the accused in court as the person she had dealt with. [113] The only reasonable inference from the totality of the evidence is that the accused before the court was the operator of the redGTO and he is the person from whom blood was drawn at RCH on March 29, 2020 at 5:27 p.m. by Jessica Murray, and witnessed byCst. Staley. Issue 2: Has Crown proved Jurisdiction of the offence beyond a reasonable doubt? [114] I am satisfied beyond a reasonable doubt that the Crown has proved jurisdiction. The alleged offence occurred in Langley,Province of British Columbia.

This fact was established through several witnesses.

Issue 3: Count 2 - Has Crown proved beyond a reasonable doubt that the accused within two hours after ceasing to operate a conveyance, had a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood and while operating the conveyance caused bodily harm to Ms. Akali? [ 115 ] Count 2 of the Information alleges that the accused had a BAC of over 80 mg% within two hours after ceasing to operate his vehicle, and while operating the vehicle caused bodily harm to Ms. Akali. There are several elements to this offence and I will address each in turn.

Based on the analysis below, I am satisfied that the Crown has proved each element of this offence beyond a reasonable doubt and, as such, I find the accused guilty of Count 2. Issue 3(a): Has the Crown proved beyond a reasonable doubt continuity of the samples analyzed by the hospital and the forensic laboratory? [ 116 ] Considering the totality of the evidence, including the evidence of Jessica Murray, Ms. Ames and Dr.

Brown, and the RCH records (Exhibit 25), I find that the Crown has proved beyond a reasonable doubt that the samples of blood analyzed by the hospital and at the forensic laboratory, were from the vials of blood collected from the accused at the said hospital on March 29, 2020 at 17:52 hours. Further, the Crown has proved beyond a reasonable doubt that the samples tested were reliable, and did not lose their integrity from the time of collection to the time of testing. I reject the evidence of Ms. Perry that suggests otherwise and her evidence does not raise a reasonable doubt.

Issue 3(b): Has the Crown proved beyond a reasonable doubt that the sample of blood drawn from the accused at the hospital was done so within two hours after he ceased to operate his vehicle? [ 117 ] I find as a fact, that the samples of blood drawn from the accused at the hospital were done so well within two hours after the accused ceased to operate his vehicle. The evidence that I accept, proves beyond a reasonable doubt that the collision that caused the accused to cease to operate his vehicle occurred at 4:05 p.m., plus or minus two minutes, on March 29, 2020.

The sample of blood drawn from the accused was at 5:52 p.m. (17:52 hours) by lab assistant Jessica Murray at the Royal Columbian Hospital. Paragraph 2 of the Admissions (Exhibit 31) states that the CCTV video from the Self Storage Depot captures images from 4:04 p.m. and 4:06 p.m. on March 29, 2020. I am satisfied beyond a reasonable doubt that this video captures Mr.

Dhaliwal’s blue Suzuki eastbound at 4:05:18, the accused’s red GTO at 4:05:30, and a brown Civic at 4:05:31. [ 118 ] Furthermore, although the civilian witnesses gave inconsistent estimates of the time of the collision, they were all consistent that the police arrived shortly after the collision. Cst. Yeo testified that she was operating a police vehicle eastbound on 56 Avenue, Langley, when she was flagged down by a civilian about 100 yards from the collision scene. She created a file at 4:07 p.m. From her observations, she believed that the collision occurred seconds prior to her arrival.

The vehicles in the collision were connected to each other and smoke was emanating from the vehicles. Cst. Yeo’s evidence is consistent with the Self Storage Depot video evidence. Issue 3(c): Has the Crown proved beyond a reasonable doubt that the accused had a BAC exceeding 80 mg% within two hours after ceasing to operate his vehicle? [ 119 ] As indicated above, I am satisfied beyond a reasonable doubt that the accused had a BAC exceeding 80 mg% within two hours after ceasing to operate his vehicle.

Both the results from the hospital laboratory and the forensic laboratory prove independently and collectively that at the time of collection of the accused’s blood at 5:52 p.m., the accused BAC exceeded 80 mg%. [ 120 ] The accused’s hospital records, Exhibit 25, indicate a blood analysis result of 48.1 mmol/L ethanol. As Ms. Ames explains in her report of April 22, 2022 (Exhibit 15), and as discussed in detail above, the hospital analyzed blood plasma or serum, and the forensic laboratory analyzed whole blood.

Further, the forensic laboratory measures BAC in mg% or milligrams of alcohol in 100 millilitres of specimen whereas the hospital uses millimoles of alcohol in 1 litre of specimen. Accordingly, a calculation is required to convert the mmol/L hospital result into an equivalent mg%. [ 121 ] I accept the evidence of Ms. Ames and Dr. Brown, and prefer their evidence over that of Ms.

Perry where they differ on the issue of conversion of mmol/L blood plasma or serum result into mg% whole blood result. [ 122 ] Accordingly, I am satisfied beyond a reasonable doubt, that at the time blood was collected from the accused, that is 5:52 p.m. on March 29, 2020, the hospital BAC is equivalent to 177 to 201 mg%; and the forensic laboratory BAC is 194 mg% +/-2 mg%. [ 123 ]

Section 320.31(2) states that the blood analysis result is proof of BAC at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly. The evidence in this case proves beyond a reasonable doubt the reliability of the blood analysis and BAC result without reliance on this presumption. There is positive evidence in this case that the analysis performed by Ms. Ames at the forensic toxicology laboratory was performed properly using a reliable sample of whole blood.

As indicated above, the Crown has proved beyond a reasonable doubt that the sample of whole blood tested at the forensic laboratory had not degraded or lost its integrity from the time of collection to the time of testing. [ 124 ] The issues raised by the accused relate to the reliability of the analysis by the hospital and the forensic laboratory, and the reliability of the samples of blood tested. In support of the position that the results of testing by both the hospital and the forensic laboratory are unreliable is the opinion of Ms.

Perry. [ 125 ] I have considered all of the evidence of the toxicology experts, and I am satisfied beyond a reasonable doubt that the BAC results from the both the hospital and forensic laboratory are reliable, and where the experts differ I prefer the opinions of Ms. Ames and Dr. Brown over that of Ms. Perry. I find that Ms. Ames and Dr. Brown gave their evidence in an impartial and considered way, making reasonable concessions about theoretical possibilities that were canvassed in addressing the opinions of Ms.

Perry. [ 126 ] I find as a fact that the whole blood tested at the forensic laboratory was not tainted or compromised in any way. The concerns raised by Ms. Perry in her opinion are theoretical in scope, not supported by the evidence, and veered into the realm of advocacy on behalf of the accused. While blood samples collected in certain ways or stored improperly could be subject to degradation,

contamination, or fermentation, there is no evidence that the sample tested herein, suffered from any of these issues. In fact, based on theevidence of Ms. Ames and Dr. Brown, I find as a fact, that the sample of whole blood tested at the forensic laboratory was a reliablesample, and that the opinion evidence of Ms. Perry does not raise a reasonable doubt on this issue. [127] At page 14 of her opinion, Ms.

Perry opined: “A previously opened, 74 day old specimen in a tube with an ambiguously matchedcap on top, without any inhibition of in-tube fermentation, that had been leaked upon during shipment, lacking the lot number andexpiration date is an unreliable sample.” I find this categorical opinion to constitute advocacy and not impartial expert opinion. Theevidence of Ms. Ames and the results of her testing at the forensic laboratory established that, in fact, the blood sample, was reliable andnot suffering from degradation. [128] Of concern with Ms.

Perry’s opinion is her failure to address the similarity of the results from the hospital and forensiclaboratory. To suggest as she did in cross-examination that the two are as different as apples and oranges, and the similarity of resultmight be a case of serendipity, calls into question Ms. Perry’s impartiality in preparing her opinion and giving her evidence. Ms. Perryrefused to acknowledge the obvious, that the similarity of results supports a finding that both the hospital and forensic laboratory resultsare reliable.

Based on the totality of evidence I find as a fact that both the hospital and forensic laboratory results are reliable, and provethe offence charged beyond a reasonable doubt. [129] The absence of various indicia of impairment, that are sometimes observed in impaired driving investigations, does not raise areasonable doubt as to the reliability of the BAC results from the hospital or the forensic laboratory. Issue 3(d): Has the Crown proved beyond a reasonable doubt that the accused caused bodily harm to Ms.

Akali while operatingthe vehicle? [130] I am satisfied beyond a reasonable doubt that the Crown has proved that the accused caused bodily harm to Ms. Akali whileoperating his vehicle. [131] I will first address the issue of bodily harm. Bodily harm is defined in s. 2 of the Criminal Code as follows: “bodily harm meansany hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling innature”. [132] I accept the evidence of Ms.

Akali that the force of the collision caused her to blackout and that she suffered a broken ankle thatrequired surgery to repair. She also suffered pains and bruises to her entire body. In the circumstances, it is not surprising that she cannotdescribe how the injury to her ankle occurred. I accept her evidence that she was not suffering from similar injuries prior to the collision.I accept the opinions in the accident reconstruction report that Ms. Akali was wearing a seatbelt and that the airbags of her vehicledeployed. Accordingly, I am satisfied beyond a reasonable doubt that the injuries suffered by Ms.

Akali in the collision constitute bodilyharm as they interfered with her health and comfort, and were more than merely transient or trifling in nature. [133] I will now address the issue of causation. I am satisfied beyond a reasonable doubt, and the only rational conclusion on the totalityof evidence, is that the accused drove his vehicle into the oncoming lane of travel and this act, if not the sole cause of the collision in factand law, was a significant contributing cause of the collision, and the resulting injuries to Ms.

Akali. [134] I find that the accused was driving in excess of the speed limit, and considering the traffic on the roadway, with a vehicle in frontof him and one to his right, he failed to slow down and drove his vehicle into the oncoming lane of travel. I am satisfied beyond areasonable doubt that this was not a circumstance of an unavoidable accident. The accused’s driving behaviour was the significantcontributing cause to the bodily harm suffered by Ms.

Akali, and such harm was reasonably foreseeable in all of the circumstances. [135] On the totality of the evidence, although alcohol consumption was likely a factor in the accused’s driving decisions and thecollision, I am unable to conclude beyond a reasonable doubt that there is a causal link between any impairment or BAC result, and thecollision that caused bodily harm to Ms. Akali. However, proof of that specific causal link is not required to found a conviction for theoffences of impaired driving or excessive BAC causing bodily harm contrary to s. 320.14(2). (See R. v.

Laliberte 2018 BCSC 2430, atparagraphs 68-96, and the cases summarized therein.) Issue 4: Count 1 - Has the Crown proved beyond a reasonable doubt that the accused operated a conveyance while his ability todo so was impaired to any degree by alcohol and while operating the conveyance caused bodily harm to Ms.

Alaki? [136] For the offence of impaired driving, the Crown must prove that the accused operated a motor vehicle while their ability to operatethe vehicle was impaired to any degree by alcohol or a drug, or a combination of the two. [137] If the evidence establishes any degree of impairment, the offence has been made out. There is no requirement to establish a“marked departure” from normal behaviour: R. v. Stellato, (ONCA), aff’d (SCC). [138] The necessary mental element is satisfied where an accused operates the vehicle after voluntarily consuming alcohol or a drug: R.v. Toews, (SCC). [139] In R. v.

Kuhl, 2018 YKTC 11 the court discussed the use of BAC extrapolation to prove the offence of impaired driving.At paragraph 37 the court held: [37] As stated in R. v. Saul, 2015 BCCA 149: 42 In short, [Blair J.A. in Paszczenko] summarized the burden on the Crown as: "[a]bsent something to put bolus drinking in play -- aninference may (but not must) be drawn [of no bolus drinking]" (para. 37). 43 The potential difficulty for the Crown to prove the absence of bolus drinking was recognized in R. v.

St-Onge Lamoureux, 2012 SCC57 where the Court stated that in the absence of any evidence on the issue, a court is entitled to apply a common sense inference that

most individuals do not bolus drink: [95] ... To do this, the expert must make certain factual assumptions, for example, that the accused did not consume a large quantity ofalcohol within approximately one half hour before the alleged offence (in other words, that a portion of the alcohol consumed hadalready been absorbed when he or she was pulled over), or between the time when he or she was pulled over and that of the test.

Ifnothing in the evidence makes it possible to cast doubt on the expert's assumption, the court may make a deduction, based on commonsense, that a person will not generally ingest large quantities of alcohol immediately before driving or while driving, or after being pulledover by the police (R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424; R. v. Grosse (1996), (ON CA), 29 O.R.(3d) 785 (C.A.); R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641; R. v. Bulman, 2007 ONCA 169, 221 O.A.C. 210). [96] In sum, even without the p

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