R. v. Kiiveri Date:, 2015 BCPC 447

Citation: R. v. Kiiveri Date: 20150810 2015 BCPC 447 File No: 24013 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEFFREY JAMES KIIVERI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: S. Patola Counsel for the Defendant: D. White Place of Hearing: Nelson , B.C. Dates of Hearing: March 30, May 13, June 22 and August 10, 2015 Date of Judgment: August 10, 2015

Introduction [1] The accused, Mr. Kiiveri, is charged on Information number 24013 with three offences. They are having the care or control ofa motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, having the care or control of a motor vehicle havingconsumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 mL of blood, andoperating a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances. All three offences arealleged to have occurred in Nelson, B.C. on September 13, 2013.

Background [2] At around 2:00 AM on September 13, 2013, Constable Fazzino and Constable Schmittke were standing in a parking lot indowntown Nelson, B.C. The sound of squealing tires drew their attention to a vehicle. They observed several examples of improperdriving, such as failing to stop at stop signs. They got into their police car and followed the vehicle. They eventually stopped thevehicle, using the emergency equipment on the police car. [3] Mr. Kiiveri was the driver of the vehicle. He was alone. By 2:11 AM, Mr.

Kiiveri had failed an approved screening devicetest, and on the basis of that failure, Constable Fazzino had formed reasonable grounds to make a breathalyzer demand. However,instead of making the breathalyzer demand, the officer engaged in other activities. Eventually, he remembered the breathalyzer demandand read the demand to Mr. Kiiveri from a card. [4] Mr.

Kiiveri was transported to the police detachment, where he provided breath samples which were analysed to indicate thathis blood alcohol concentration was in excess of 80 mg of alcohol in 100 mL of blood. [5] Earlier in this trial, during the Crown’s case, Mr. Kiiveri made an application under section 24 (2) of the Canadian Charter ofRights and Freedoms for an order excluding the breath samples taken at the police detachment as a remedy for what he alleged to beviolations of his right to be secure from unreasonable search and seizure, as guaranteed by

section 8 of the Charter, and his right to befree from arbitrary detention, as guaranteed by

section 9 of the Charter. [6] On May 13, 2015, I found that the detention was not arbitrary, but that the breathalyzer demand had not been made as soon aspracticable, and that therefore the breathalyzer samples were not taken pursuant to a demand made under section 254 (3). However,despite the fact that the breathalyzer samples were not taken pursuant to a demand made under section 254 (3), I ruled that thebreathalyzer samples could be admitted because, after applying the principles set out in R. v.

Grant, I concluded that admitting thebreathalyzer samples would not bring the administration of justice into disrepute. [7] The breathalyzer certificate was admitted and marked as a full exhibit on the trial. [8] Following that ruling, there was another Charter application before the Crown closed its case. Issues [9] There are three issues that I am required to decide:

a) Does the failure to make the breathalyzer demand as soon as practicable have the effect of depriving the Crown of the presumption ofidentity in section 258 (1) (

c) of the Criminal Code?

b) Does the admissible evidence establish beyond a reasonable doubt that Mr. Kiiveri’s ability to operate the vehicle was impaired byalcohol?

c) Does the admissible evidence establish beyond a reasonable doubt that Mr. Kiiveri operated the motor vehicle in a manner that wasdangerous to the public? Law and Analysis [10] The first issue requires consideration of a problem of evidence law that has arisen repeatedly for 40 years, and has led todifferent results in different cases. Admissibility of the Certificate: R. v. Rilling (1975) (SCC), 24 CCC (2d) 81 (SCC). [11] In this case, the majority of the Supreme Court of Canada dismissed an appeal by Mr. Rilling.

The appellant had beenconvicted at trial of driving with more than 80 mg of alcohol in his blood, and his conviction was affirmed by the Appellate Division ofthe Supreme Court of Alberta. The issue was whether a Certificate of Analysis was admissible when there was no evidence of anyreasonable grounds for making the breathalyzer demand.

The majority in the Supreme Court of Canada agreed with the conclusion ofthe Appellate Division, which was that, “the motive which actuates a peace officer in making a demand under section 235 (1) is not arelevant consideration when the demand has been acceded to.” Presumption of Identity: R. v. Charette [12] Some courts have held that the decision in R. v. Rilling is limited in its effect, because it says nothing about the presumption ofidentity.

The reasoning in these cases is that, when a demand is not made pursuant to section 254 (3), the certificate giving evidence of ablood-alcohol concentration at the time of testing may still be admissible but the Crown will be denied the presumption of identity insection 258 (1) (c). In the absence of the presumption of identity, the Crown must call expert evidence to extrapolate the blood-alcoholconcentration at the time of testing back to the blood-alcohol concentration at the time of the alleged offence, or else the charge will bedismissed. R. v. Searle, 2006 NBCA 118 is an example of this reasoning.

[13] However, in R. v. Charette, 2009 ONCA 310 , [2009] OJ No. 1506 at paras 44 and 45, Moldaver JA declared that theratio of R. v. Rilling applied to the presumption of identity, as well as the admissibility of the certificate, on the basis of statutoryinterpretation as well as public policy. [14] Last fall, in a decision called R. v. Alex, 2014 BCSC 2328 at para 46, Schultes J. concluded that R. v. Charette correctlyanalysed the effect of the holding in R. v. Rilling and its current application to both the presumption of accuracy and the presumption ofidentity. R. v.

Alex, being a decision of the British Columbia Supreme Court, is binding on me. [15] I conclude that a failure to prove the existence of one of the preconditions for a lawful demand under section 254 (3) does notdeprive the Crown of the presumption of identity in section 258 (1) (c). This is so regardless of whether the precondition in question isreasonable grounds to believe that a person is committing an offence, or the making of a demand as soon as practicable. [16] It follows that I find Mr. Kiiveri guilty of driving with a blood alcohol concentration that exceeded 80 mg of alcohol in 100 mLof blood.

Dangerous Driving [17] The actus reus of dangerous driving is driving conduct that is objectively dangerous to the public, having regard to all thecircumstances. The circumstances include the factors listed in section 249 (1)(

a) of the Criminal Code, which are the nature, conditionand use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably beexpected to be at that place. [18] The mens rea of the offence of dangerous driving is a marked departure from the standard of care of a reasonably prudent driverin all of the circumstances facing the accused.

Where the departure from the standard of care of a reasonably prudent driver is not“marked” even though still objectively dangerous, the accused should not be found guilty. [19] Evidence that an accused person voluntarily consumed alcohol prior to operating a motor vehicle may be relevant to the mensrea of the offence of dangerous driving.

Operating a motor vehicle after consuming alcohol may demonstrate a degree of recklessnessthat, when considered with the actual manner of driving, establishes a pattern of disregard for the safety of the public that amounts to amarked departure from the standard of care of a reasonably prudent driver. [20] In this case, the evidence establishes that Mr. Kiiveri drove his vehicle through downtown Nelson at a speed high enough tocause the tires of the vehicle to squeal at corners. He failed to stop at a stop sign.

This occurred at a time of the night when bars wereclosing and patrons could reasonably be expected to be crossing streets. The investigating police officers pursued him for approximately1500 meters along dark, winding roads at speeds of up to twice the posted speed limit. All of this occurred after Mr. Kiiveri hadvoluntarily consumed alcohol. [21] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr.

Kiiveri’s manner of driving was objectivelydangerous to the public, and that it was a pattern of conduct that amounted, in total, to a marked departure from the standard of care of areasonably prudent driver, and I find him guilty of dangerous driving. Impaired Driving [22] The Crown must prove beyond a reasonable doubt that Mr. Kiiveri’s ability to operate a motor vehicle was impaired by alcohol. In this case, I note that, although he was somewhat unsteady on his feet when stepping out of his vehicle, Mr.

Kiiveri’s balance while atthe police detachment was observed to be fine, that the degree of fumbling in his wallet was characterized as “a little bit”, that the policeobserved no slurred speech, and that he was polite, cooperative and did nothing out of the ordinary. When considered with that evidence,the driving pattern is not sufficient to prove beyond a doubt that his ability to operate a motor vehicle was impaired, and I find him notguilty of impaired driving. The Honourable Judge R. Hewson