R v. Baker, 2017 BCPC 280

Citation: R v. Baker, Ronald James Date: 20170925 2017 BCPC 280 File No: 23629-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD JAMES BAKER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. MORGAN Counsel for the Crown: W. Hilderman Counsel for the Defendant: J. van der Walle Place of Hearing: Salmon Arm , B.C. Date of Hearing: May 16, 2017 and July 25, 2017 Date of Judgment: September 25, 2017 [ 1 ] The accused is charged with one count of impaired driving and one count of driving with an illegal blood-alcohol level. Both

charges arise out of the accused's operation of a motor vehicle on June 26, 2016, near Salmon Arm, B.C. [ 2 ] The issues in this case are: 1. Whether Mr. Baker’s right under s. 9 of the Charter was infringed as a result of his detention amounting to a de-facto arrest in circumstances not justifying a warrantless arrest; 2. Whether Mr. Baker’s breath samples were taken as soon as practicable; 3. Whether the first breath sample was taken within the 2 hour time limit from driving; and 4. Whether the evidence establishes beyond a reasonable doubt Mr. Baker’s ability to operate a motor vehicle was impaired by alcohol.

THE FACTS [ 3 ] In the early evening of June 26, 2016, Mr. Baker was towing a trailer on the Trans-Canada Highway near Salmon Arm, British Columbia. Witnesses did not notice any unusual driving. However, for an unknown reason, Mr. Baker lost control of the trailer, resulting in the trailer overturning and the truck and trailer jack-knifing across the two-lane highway. [ 4 ] Carl Johnston, who was in his nearby house, heard tires screeching and a loud crash. He ran towards the accident scene telling his wife to call 911. He found Mr. Baker sitting in his vehicle with the overturned trailer still attached.

He noted Mr. Baker to have a stunned look on his face. [ 5 ] Mr. Baker decided to try to break away from the overturned trailer by driving his truck forward, despite Mr. Johnston telling him not to. After three attempts, Mr. Baker did break the undercarriage of the trailer off of the trailer itself and dragged the undercarriage by the safety chains approximately 200 metres to a nearby Esso station where he parked his vehicle. Carl Johnston ran after the vehicle to the Esso station. [ 6 ] Mr. Johnston saw the accused get out of his vehicle and put a drink can into a nearby garbage can. Mr.

Johnston looked into the garbage can and noted the only drink can in there was a beer can. He later pointed this out to the investigating RCMP officer. Mr. Johnston confirmed the photograph of the Coors Light beer can was what he saw when he looked into the garbage. [ 7 ] He testified that the accused was staggering, “smelled like booze” and that by the look on his face he looked to be “out of it, asleep or impaired on drugs.” Although Mr.

Johnston agreed on cross examination he had not said the accused was staggering when he made his statement on scene, he did not resile from his in-court testimony and was not pressed on this point. [ 8 ] Mr. Johnston talked to the accused at the Esso station asking him to sit down. He said the accused asked Mr. Johnston if he believed in God. He also testified that the accused was staggering, “looked drunk”, “smelled drunk” and that Mr.

Johnston “smelled alcohol” coming from the accused’s breath. [ 9 ] Within the first minute of Constable MacLean's arrival on scene Carl Johnston pointed out the accused as the driver, said the accused had not consumed any alcohol after getting out of the vehicle, and pointed out the Coors Light beer can the accused had put in the garbage. [ 10 ] Constable MacLean spoke with the accused and noted a moderate odour of liquor coming from the accused and also noted the accused's red, bloodshot, and glassy eyes.

Constable MacLean formed a suspicion the accused had operated a motor vehicle with alcohol in his body within the preceding three hours and asked the accused to accompany him back to his police cruiser where he read to the accused the approved screening device demand. [ 11 ] On his direct testimony, Constable MacLean stated that at the police cruiser the accused’s balance was unsteady and that he wavered back and forth. On cross-examination he clarified that the unsteadiness occurred when he was providing breath samples, and at that point the accused was ‘wobbling’.

Constable MacLean read the approved screening device demand two minutes after arriving on scene. The time of the demand was 2040 hrs. [ 12 ] It took the accused nine attempts to provide a satisfactory sample. Constable MacLean was of the opinion that the accused was not listening to his directions as to how to provide a proper sample. The first two attempts resulted in a display reading of ‘insufficient flow’. Attempts 3 to 7 resulted in a reading of ‘flow high’ meaning the accused was blowing much too hard. [ 13 ] At 2046 hrs. on the accused’s 9th attempt, a satisfactory reading was obtained.

The indication was a ‘fail’, which meant to Constable MacLean the accused had over 100 mg of alcohol in 100 mL of his blood, thereby exceeding the legal limit. [ 14 ] Constable MacLean testified that during the 10 minutes he was attempting to get a satisfactory ASD breath sample from the accused, he observed the accused’s unsteadiness, slurred speech, red eyes, and also that the accused was not listening to his directions, resulting in eight attempts before a satisfactory sample was provided.

Constable MacLean said during this whole process and even prior to obtaining the fail sample, his grounds had been elevated from a suspicion to a belief that the accused had been operating a motor vehicle when his ability to do so was impaired by alcohol. [ 15 ] At 2047 hrs. the officer told the accused he was detained for an impaired driving investigation and by memory provided the accused with his Charter rights and the official police warning. [ 16 ] He then placed the accused in handcuffs, searched him for officer safety and to ensure he had no alcohol on him, and then placed the accused in the back of the police cruiser.

The officer got in the police cruiser, closed the windows and opened the silent patrolmen to speak with the accused.

[ 17 ] On cross-examination Constable MacLean confirmed that he told the accused he was detained and also said he was aware his search powers were more limited during a detention, and that an arrest would entail a more thorough search. [ 18 ] He stated he put the handcuffs on the accused because although the accused was cooperative and not aggressive and there was nothing about him that made the officer think he was concealing a weapon, the officer's experience is that when dealing with intoxicated people, although they may be initially compliant, they often become violent after learning they are being detained and taken to the detachment.

Consequently he has developed a practice to handcuff detained intoxicated people in similar circumstances. [ 19 ] At 2051 hrs. Constable MacLean again explained to the accused he was being detained for an impaired driving investigation, and asked the accused if he understood. The accused replied “Yes sir.” [ 20 ] At 2052 hrs. Constable MacLean read from his card the accused's Charter rights and asked the accused if he understood. The accused replied again “Yes sir.” When asked if he wanted to contact counsel the accused replied “Not tonight.” [ 21 ] At 2052 hrs.

Constable MacLean read to the accused the breath demand verbatim from his card, asked the accused if he understood, and the accused replied ”Yes sir.” [ 22 ] At 2053 hrs. Constable MacLean read the police caution to the accused. [ 23 ] Constable MacLean then asked the other officers present to talk with witnesses, take photographs, and arrange for a tow truck.

He made queries on the accused’s vehicle and also completed the 24 hour Notice of Prohibition, which, at 2104 hrs., he served on the accused by holding it up and showing it to him and telling him he would provide his copy at the detachment. [ 24 ] Constable MacLean was asked by another officer for the accused's keys to the accused’s truck to assist in towing the vehicle. Constable MacLean asked the accused for the keys to his vehicle, was told by the accused the keys were in his pants pocket, from which Constable MacLean retrieved them.

The accused then said his handcuffs were hurting so Constable MacLean removed the handcuffs and re-handcuffed the accused with his hands in front of him, knowing it was an approximate 20 minute drive to the detachment. [ 25 ] Constable MacLean left the scene at 2110 hrs. and arrived at the detachment at 2126 hrs. He walked the accused to cell area, and at 2128 hrs. asked the accused again if he wanted to talk to a lawyer, to which the accused said he did not and that he was going to call one tomorrow.

Constable MacLean took the accused to the observation room and at 2129 hrs. and started the first observation period. [ 26 ] The first observation period ended at 2153 hrs. at which time Const. Volz placed the accused before the Intoxilyzer and asked for a sample. Constable MacLean said he observed that Mr. Baker’s first two attempts at providing a sample resulted in a reading of ‘fluctuating flows’ and unsuitable samples. The first suitable sample was obtained at 2157 hrs.

That sample resulted in a blood alcohol reading of 230 mg percent. [ 27 ] At 2218 hrs. when the second observation period ended, the accused was placed again before the breath testing equipment. However, it took 13 attempts before a second suitable sample was obtained. The first few attempts resulted in a reading of ‘insufficient flow’ and the other attempts resulted in a reading of ‘stopped flow’ because the accused broke the mouth seal. He was warned multiple times about the legal consequences of refusing to provide a sample.

At 2236 hrs. on the 13th attempt, a suitable second sample was obtained that resulted in a blood-alcohol reading of 210 mg percent. [ 28 ] Constable MacLean testified that at times during the observation periods the accused became emotional and was crying. At the conclusion of the investigation the accused was released. His sister had come to the detachment to pick him up. [ 29 ] A voir dire was declared to determine the admissibility of the breath test certificates. ARGUMENT 1. Lawfulness of arrest/detention under s. 9 of the Charter Position of the Defence [ 30 ] Mr. van der Walle, on behalf of Mr.

Baker, submits that Mr. Baker's rights pursuant to s. 9 of the Charter to not be arbitrarily detained were breached when Constable MacLean placed Mr. Baker under de-facto arrest. He submits that although Constable MacLean testified that he told Mr. Baker he was being “detained”, that placing Mr. Baker in handcuffs and in the back of a locked police cruiser must be viewed as a de-facto arrest. [ 31 ] Mr. van der Walle says there was no legal basis, pursuant to s. 495 of the Criminal Code , to arrest Mr.

Baker, given the offence of driving while impaired or with an illegal blood-alcohol level contrary to s. 253 of the Criminal Code is an offence that can be proceeded with by indictment or by

summary conviction; commonly referred to as a hybrid offence. [ 32 ] Mr. van der Walle argues that s. 495(2) limits when a peace officer may arrest a person without a warrant for a hybrid offence to circumstances when the officer believes on reasonable grounds that he needs to either establish the identity of the person, secure or preserve evidence of or relating to the offence, or prevent the continuation or repetition of the offence or the commission of another offence, or to ensure the person will attend court. [ 33 ] It is further submitted that it would be an error for this court to determine s. 495(1) applies - which allows a peace officer to arrest without a warrant a person who has committed an indictable offence - in reliance on s. 34 of the

Interpretation Act that sets out that hybrid offences are deemed to be indictable offences at the investigative stage. This is so, Mr. van der Walle contends, because s. 3(1) limits the application of s. 34. Section 3(1) of the

Interpretation Act reads:

3(1). Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after thecommencement of this Act. [Emphasis added] [34] Mr. van der Walle submits that Parliament’s contrary intention is clear in s. 495(2)(

b) where it is stated: 495

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to bedealt with according to law. [Emphasis added] [35] Mr. van der Walle submits, in effect, that an absurdity would result if s. 34 of the

Interpretation Act were to govern because itwould render section 495(2)(

b) meaningless. [36] The position of the defence is that the circumstances do not justify the warrantless arrest of Mr. Baker, and consequently hisright pursuant to s. 9 of the Charter to not be arbitrarily detained or imprisoned was breached, and that the only appropriate remedywould be to exclude the breath test evidence under section 24(2) of the Charter. Position of the Crown on the s. 9 Charter issue [37] Crown counsel Mr. Hilderman emphasizes that the investigating officer testified that he ‘detained’ Mr.

Baker for an impaireddriving investigation, and that he did not arrest him, and consequently the defence argument about an illegal ‘arrest’ does not apply. [38] The Crown also points out that the same argument was made before Judge Wyatt in the case of R. v.

Lavoie, 2015 BCPC 432, 2015 BCPC 0432, and was unsuccessful notwithstanding that in Lavoie the accused was actually arrested as opposed todetained. [39] I pause here to point out that Mr. van der Walle fairly brought the Lavoie case to my attention and argues that it was simplywrongly decided, and that Judge Wyatt did not have the benefit of hearing argument regarding the limiting effect set out in s. 3 of theInterpretation Act. [40] In Lavoie, at par. 30, Judge Wyatt stated: 30. I note that the decision of the BC Court of Appeal in R. v.

Ashby, 2013 BCCA 334, held that by virtue of s. 34 of theInterpretation Act, an offence which can be prosecuted either by indictment or by a

summary conviction is deemed indictable at theinvestigation stage. The court in Ashby cites the decision of R. v. Connors (1998), (BC CA), 121 C.C.C. (3d) 358,another BC Court of Appeal decision, as authority for this. 31. Constable Booker in the case at bar knew that the offence of impaired driving was a hybrid offence, which Ashby tells us isdeemed to be an indictable offence at the investigation phase. Accordingly, this officer had authority to arrest Mr. Lavoie withoutwarrant if he had reasonable grounds to believe he had committed an indictable offence.

Here, I find he had those reasonable grounds. [41] I note that in Lavoie, Judge Wyatt went on to consider the s. 495(2) argument, and found at par. 37 that in any event, an arrestversus a detention for an impaired driving investigation to secure breath samples is really a matter of semantics, and cites R. v.Patterson, 2010 BCCA 442 for this proposition.

Decision on S. 9 Argument [42] I agree with Judge Wyatt that in an impaired driving investigation, where a detention is justified under s. 253(3) to obtain breathsamples, the distinction between an ‘arrest’ and a ‘detention’ will very often blur and become a matter of semantics, given the requirednature and duration of the detention, that includes a requirement the person accompany the police officer. [43] In Mr. Baker's case, the tipping point for the defence is when Mr. Baker was handcuffed.

At that point it is argued thedetention turned into a de-facto arrest, and the court is to be cognizant of the seriousness most citizens would view having their handscuffed together in circumstances where they believe it is not necessary. [44] Constable MacLean testified he handcuffs all intoxicated people before placing them in his police cruiser. He says he hasdeveloped this personal policy as a result of his experience with many intoxicated people changing from cooperative to very

uncooperative as soon as they find out they are being taken to the detachment for an investigation. [45] I note that at Mr. Baker’s request Constable MacLean re-cuffed Mr. Baker from behind his back to having his hands in front ofhim, for comfort. I also note that there is evidence that Mr. Baker did exhibit some emotional behaviour at the detachment notinconsistent with the officer’s testimony regarding the varying behaviour of intoxicated persons.

The officer testified that the indicia ofimpairment was not limited to the fail result on the ASD but also included a moderate odour of liquor that was getting stronger, red,bloodshot, glassy eyes and unsteady balance. [46] I cannot conclude that on the facts of this case that the handcuffing of Mr. Baker was objectively unreasonable or that itelevated the detention to secure breath samples authorized by s. 254(3) of the Code to an arrest. [47] However, even if I am wrong and the detention became a de-facto arrest, I find the arrest was justified pursuant to section495(2) given the need to obtain breath samples.

This finding is pursuant to the BC Court of Appeal's decision in R. v. Scott (BCCA). [48] In Scott, Justice McFarlane, speaking for the court, found that there had been no s. 9 breach as a result of the arrest of a driver ina case of impaired driving causing bodily harm given that offence is an indictable offence justifying arrest pursuant to section 495(1) ofthe Code. Justice McFarlane went on to consider the result if the appellant's argument that s. 495(2) should govern given the officer hadtold the appellant that he was being arrested for impaired driving, which is a hybrid offence.

At page 7 of that decision the relevantportion of the 4th paragraph reads as follows: …. Furthermore, if section 495(2) applied on the narrow ground that the police officer said, when he was arresting the appellant, that hewas doing so for the offence of impaired driving (an offence which may be punishable on

summary conviction), I think the detentionwas justified by the purpose of securing a sample of the breath of the accused. In short, there was a reason for the detention. The arrest,in my view, was not made on policy grounds alone and as such is not arbitrary. [49] I do not agree with Mr. van der Walle that I should consider the BC Court of Appeal’s alternative reasoning in Scott non-bindingobiter. [50] In Mr. Baker's case, it cannot be said that the detention was arbitrary. If the fact of handcuffing Mr.

Baker out of a concern ofhis level of intoxication and the need to transport him back to the detachment to continue with the impaired driving investigation elevatedthe detention to an arrest, I find that - having regard to ‘all of the circumstances’, as those words are used by Parliament in s. 495(2)(d) -the arrest was justified under s. 495(2). [51] Furthermore, I also find I am bound by my sister judge’s decision in Lavoie, and that we both are bound by the BC Court ofAppeal decision in Ashby, to apply s. 34 of the

Interpretation Act, and deem the offence Mr. Baker was facing at the investigative stageto be an indictable offence. Accordingly, I find that the officer had authority to arrest Mr. Baker without warrant pursuant to section495(1) given he had the requisite reasonable grounds. [52] The issue as to whether the wording in s. 3 of the

Interpretation Act means s. 34 should not apply to s. 495 of the Criminal Codeis something that, at this point, it seems to me, should be pursued before the BC Court of Appeal. 2. Whether the Breath Demand was made as soon as practicable Position of the Defence [53] Mr. van der Walle narrowed his concern on this issue to the 17 minutes starting at 2053 immediately after Mr. Baker had beendetained, placed in the back of the police cruiser, and given his Charter rights, police caution, and breath demand, to 2110 whenConstable MacLean departed the scene with Mr. Baker.

Mr. van der Walle submits the Crown has not presented evidence to adequatelyexplain the 17 minute delay, and consequently it cannot be said the statutory requirement to take the breath samples as soon aspracticable has been proven to have been complied with. Position of the Crown [54] Crown counsel Mr. Hilderman says there is evidence that the officer’s time during the relevant 17 minutes was taken up withduties related to the investigation of Mr. Baker. He submits that although the onus is on the Crown, the case-law makes clear that thereis no requirement on the Crown to provide a minute by minute analysis.

Decision on the ‘as soon as practicable’ issue [55] Constable MacLean testified that after making the breath demand to Mr. Baker at 2053 he then directed other police officers totake statements from the various witnesses, to take photographs, and to arrange for a tow truck. [56] Constable MacLean then made computer queries regarding the accused’s vehicle, started working on the 24 hour Notice ofProhibition and completed the paperwork at 2104, and served Mr. Baker with the Notice by holding it up to him allowing him to read it,and explaining to Mr.

Baker he would give him a copy at the detachment with the other paperwork. [57] Constable MacLean testified that at this time another police officer asked for the key to the accused's vehicle. ConstableMacLean spoke to the accused, and after discovering that the key was in Mr. Baker’s front pocket, retrieved the key for the other officer. [58] Constable MacLean testified that at this point the accused stated the handcuffs were hurting him, so Constable MacLeanremoved the handcuffs and re-handcuffed Mr.

Baker in front. [59] I find that overall, the breath samples were taken within a reasonably prompt time, and also find that, specifically in regards to

the 17 minutes of concern, the evidence establishes the investigating officer acted reasonably and that the time was taken up with policeduties related to the investigation. I note that, although there is no requirement for the Crown to provide a detailed explanation of whatoccurred during every minute, in this case the evidence more than establishes the samples were taken with reasonable promptness,thereby satisfying the statutory requirement they be taken as soon as practicable. (See R. v. Seppala, 2011 BCSC 31 at paras. 88-91; R.v. Vanderbruggen, (ON CA), [2006] OJ 1138 (CA) at paras.12-14.) 3. Whether breath samples were taken within 2 hours of driving [60] Section 258 (1)(

c) sets out that a requirement for the application of the legislative shortcut for admission of the Certificates tobe conclusive proof the breath test results apply to the time of driving, is that the first breath sample be taken within two hours ofdriving. [61] Mr. van der Walle, on behalf of Mr. Baker, submits that the evidence does not establish beyond a reasonable doubt that the firstsample was taken within two hours of driving. Decision on the 2 hour time limit issue [62] I find the evidence does establish the first sample was taken within the two-hour time limit.

That evidence is as follows. [63] Civilian witness Carl Johnston testified that it was sometime in the evening around dinner time, which, although he was notcertain, said was ‘probably’ around 8 p.m., when he was in his residence and heard screeching tires and a loud crash. He asked hisgirlfriend to call 911 then ran across his yard, down to the highway to the accident scene. [64] He testified it took the police 15 minutes to arrive. [65] Civilian witness Raedene Melin testified that she saw the accident occur and it was at ‘approximately’ 8 p.m.

She said shestopped her vehicle and saw a man coming from the nearby house who attempted to talk to the driver before the driver drove his truck,breaking free of the overturned trailer and driving to the Esso station. She also said she saw the man from the house run to the gasstation. The man she saw I find was Mr. Johnston, and her evidence further establishes Mr.

Johnston arrived at the accident scene withinmoments of the accident occurring. [66] Constable MacLean testified he was dispatched to the accident at 2021 hrs. and arrived on scene at 2038 hrs. [67] Constable Volz testified he arrived on scene at 2040 hrs. and upon his arrival Constable MacLean already had the driver in theback of his police cruiser. [68] Constable Volz was the qualified technician and testified that after two unsuccessful attempts, the first sample was obtained at2156 hrs. [69] Although the civilian witnesses testified that the accident occurred “probably around 8 p.m.” [Carl Johnston], or “approximately8 p.m.” [Raedene Melin], Carl Johnson was not equivocal in his estimate of it taking 15 minutes for the police to arrive on scene. [70] A 15 minute time estimate is consistent with him having told his spouse to call 911 as he ran towards the accident, and the timedifference between the dispatch time of 2021 hrs. and Constable MacLean's arrival on scene at 2038 hrs.

These facts establish that theaccident occurred sometime after 8 p.m., and the last driving when the accused parked his truck at the Esso station occurred severalminutes later. [71] I find the Crown has established that the first sample was obtained within two-hours from the time the accused got out of hisvehicle at the Esso station.

Summary of Decisions on the Voir Dire [72] There was no breach of Mr. Baker’s s. 9 Charter rights due to an illegal arrest. There was no breach of the statutoryrequirement the breath samples be taken as soon as practicable. The first breath sample was taken within the two hour time limit. Thebreath certificates are admissible, and the associated statutory presumptions apply. All of the evidence heard on the voir dire is admittedinto the trial proper. Decision on the over .08 charge [73] The certificates are conclusive evidence that Mr. Baker was operating his motor vehicle with an illegal blood-alcohol level,contrary to s. 253(1)(

b) of the Code. Accordingly, I convict Mr. Baker on the charge of operating a motor vehicle after having consumedalcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood. 3. Whether Mr. Baker’s ability to operate a motor vehicle was impaired by Alcohol [74] Mr. van der Walle submits that in determining whether the Crown has proven the accused's ability to operate a motor vehiclewas in fact impaired by alcohol, the court must take into consideration all of the evidence in totality including evidence that points awayfrom impairment.

He emphasizes there is no evidence of bad driving, and that the accident may have been caused by a mechanicalmalfunction. [75] He says the decision made by Mr. Baker to attempt to detach the truck from the trailer resulting in the undercarriage of thetrailer breaking away, and then towing the undercarriage by the safety chains along the shoulder of the road back to the Esso station, isnot necessarily indicative of impaired judgment, but could more relate to the Mr.

Baker being shocked or rattled from the accident, andthe fact that he was sitting in a parked motor vehicle in the middle of the highway with traffic approaching, and felt he had to take stepsfor safety.

[76] Crown counsel Mr. Hilderman concedes there is no evidence of poor driving and that it appears there may have been amechanical cause for the trailer detaching. Crown counsel argues that notwithstanding the absence of driving evidence, the indicia ofimpairment in this case establishes an impaired ability to drive. Decision on Impaired Driving (over .08) charge [77] The test for impaired driving is whether an accused's ability to operate a motor vehicle is impaired by alcohol or drug to anydegree ranging from slight to great: R. v. Stellato (ON CA), [1993] OJ 18 (CA).

It is important to consider thetotality of the evidence. [78] In this case there is no driving evidence to support a finding of impairment. However there is strong evidence of indicia ofimpairment. That evidence includes Mr. Johnston’s testimony that Mr.

Baker was staggering and ‘smelled drunk’ and ‘looked drunk’,and Constable MacLean’s evidence that his grounds were elevated as a result of his observation that the accused had a moderate odour ofliquor that was getting stronger, red, bloodshot, glassy eyes, unsteady balance and slurred speech. [79] Of significance is the evidence associated with gross motor impairment: unsteady balance and slurred speech.

In this case I donot find that lack of notes relating to slurred speech detracts from the officer’s consistent and unequivocal testimony on this point. [80] When I consider the evidence in totality, I find that the accused’s ability to drive a motor vehicle was impaired. [81] That the accused’s impairment was due to alcohol consumption is made clear from the evidence of the odour of liquor noted bythe investigating officer and the civilian witness.

The beer can evidence is consistent with this evidence. [82] Although without expert evidence the breath testing results cannot be used to establish an impaired ability to drive, the breathtesting evidence does additionally establish the impairment was due to the accused’s consumption of alcohol. [83] I find the Crown has proven beyond a reasonable doubt Mr. Baker operated a motor vehicle while his ability to do so wasimpaired by alcohol, contrary to s. 253(1)(

a) of the Criminal Code. CONCLUSION [84] Given the rule against multiple convictions arising out of the same circumstances, I enter a conditional stay on the impaireddriving s. 253(1)(

a) charge, and confirm I am convicting Mr. Baker on the ‘over .08’ s. 253(1)(

b) charge. The Honourable Judge R. D. Morgan Provincial Court of British Columbia