Her Majesty the Queen - v. -, 2013 SKPC 193

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 193 Date: November 26, 2013 Information: 24467899 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Keith Klassen Appearing: Will Collins For the Crown Michael Owens For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Keith Klassen, is charged that on or about May 5, 2012, he drove a motor vehicle while his ability to do so was impaired by alcohol, contrary to section 253(1) (

a) of the Criminal Code , and further, that he drove while his blood alcohol was greater than .08 contrary to section 253(1)(

b) of the Criminal Code .

[ 2 ] At the commencement of the accused’s trial, Defence counsel advised that in addition to other arguments that he would be making, he would be alleging a breach of the accused’s sections 8 and/or 9 Charter rights. If I accepted his argument on the Charter issues, it was his position that any evidence emanating from the breaches should be excluded pursuant to section 24(2) of the Charter . [ 3 ] It was agreed by all parties that the Court enter into a voir dire at the outset of trial on these Charter issues. The Crown called three police witnesses on the voir dire and the Defence called the accused.

At the completion of the voir dire , both counsel deferred their arguments until the end of trial. With the consent of the Defence, the Crown asked to have all of the evidence from the voir dire applied to the trial proper subject only to my rulings on the Charter issues. This was done and the Crown closed their case on the trial. Defence then asked to have his client’s evidence from the voir dire applied to the trial proper. The Crown agreed and following that, the Defence closed its case on the trial. [ 4 ] The issues identified by Crown and Defence in closing argument are as follows:

a) Was the initial stopping of the accused by the police a breach of the accused’s

section 9 Charter right to be free from arbitrary detention?

b) Did Constable Reimer lack the reasonable grounds to make a breath demand on the accused thereby violating his

section 8 and/or 9 Charter rights?

c) If any of the sections 8 and/or 9 Charter breaches are made out, should the evidence obtained as a result of those breaches be excluded pursuant to section 24(2) of the Charter ?

d) Were the accused’s breath tests taken “as soon as practicable” as required by section 258(1) (

c) of the Criminal Code ?

e) Has the Crown proven beyond a reasonable doubt that the accused was driving his motor vehicle while his ability to do so was impaired? FACTS [ 5 ] The Court heard evidence from Constables Reimer, Hall and Strueby and from the accused. While there was commonality throughout their evidence, there were some material differences in the testimony of Constable Reimer, Constable Hall and the accused. Where their evidence differs, I prefer the testimony of Constable Reimer. He was a ten year police officer who by his own estimate, had been involved in some 100 to 200 impaired driving investigations.

I was given no indication that he had ever had any previous contact with the accused or that he had any reason to fabricate his testimony. He was the main investigating officer in this case and made detailed notes at the time of the incident which he used to refresh his memory. He was candid and straightforward on the stand, consistent in his answers in examination in chief and in cross examination and testified to things that assisted both the Crown and the Defence. In all respects he was a very credible witness. [ 6 ] Constable Hall, by his own admission, had very little to do with this investigation.

He was on his way back to the Warman RCMP Detachment when the accused went through a stop sign and almost hit him. He observed Constable Reimer pull up to the accused’s vehicle with his emergency lights on. He stopped to assist Constable Reimer but it was Constable Reimer’s case to deal with. He looked in the passenger side of the accused’s vehicle and later drove the accused’s vehicle a few hundred yards to the Warman RCMP Detachment parking lot. Other than that, he had no involvement in this matter and had no interaction with the accused.

He had limited involvement in this case and his recollection of what took place is not as detailed or as well documented as that of Constable Reimer. Consequently where their testimony differs, I accept Constable Reimer’s testimony as being more accurate. [ 7 ] The accused said that he “recalls everything like it was yesterday”. But listening to him testify, I was not convinced that that

was the case. He seemed unsure of things and I did not find his testimony to be particularly compelling. For example, he was not prepared to admit that beer was pouring out of his truck when he was stopped but agreed that it was possible when he was confronted with the fact that both police officers had witnessed this. On another occasion, he testified that he said something to Cst. Hall about driving at him with his police vehicle but then in the next breath he said that he did not say anything to Cst. Hall about this at all.

These are just a couple of examples that led me to conclude that the accused does not have a clear recollection of what took place on the evening in question. When I consider the accused’s testimony that he was in a state of shock after he had to slam on his brakes to avoid hitting a police cruiser and taking into account that he was testifying from his memory to something that occurred some fifteen months earlier, I do not find that his evidence has the same degree of reliability as that of Cst.

Reimer. [ 8 ] The evidence that I accept is that on May 4, 2012, the accused and others were helping a friend convert a dairy barn into a sheep facility. They worked at this from 10:00 a.m. until approximately 8:00 p.m. The accused drank some beer while he worked. [ 9 ] At 8:00 p.m., the accused and his three friends left the farm and drove to the one fellow’s home in Warman to have a barbeque. The accused drove everyone in his truck.

When they left the farm, they took what was left of the case of beer that they had been drinking and put it in the accused’s truck. [ 10 ] At around 11:00 p.m., the four of them got into the accused’s truck and drove to the Warman Hotel and Bar on Railway Street in Warman. They got there around 11:15 p.m. At the bar they met up with some more friends. The accused was drinking. The three friends he came with left before him and eventually, the accused decided it was time for him to go too.

He walked across the street, got into his truck and left eastbound on Railway Street. [ 11 ] In the early morning hours of May 5, 2012, Constables Reimer, Hall and Strueby were all working, in full uniform and operating separate patrol vehicles in the Warman District of Saskatchewan.

At the same time that the accused was getting into his truck, Constables Hall and Reimer were in the vicinity of one another, both proceeding north on 6 th Avenue in Warman on their way back to the RCMP Detachment. [ 12 ] As Constable Reimer passed through the intersection of Railway Street and 6 th Avenue, he noticed a pickup truck leaving the area of the Warman Hotel and Bar. He observed this vehicle proceed east on Railway Street and then north onto 8 th Avenue, paralleling his direction of travel.

He quickly lost sight of the truck given the distance between them and the surrounding houses and trees. [ 13 ] A few minutes later, he saw the truck at the intersection of 6 th Avenue and Klassen Street. As he followed Constable Hall, he observed the truck brake heavily at the intersection and slide through the stop sign some three feet before coming to a stop. It appeared to him that the driver did not realize that he had a stop sign and he slammed on his brakes. Constable Hall had to swerve around the truck to avoid a collision.

Given this driving and that he recognized this truck as the one that he had seen minutes earlier leaving the area of the Warman Hotel and Bar, he decided to stop the truck and check the sobriety of the driver. [ 14 ] Constable Reimer swung his police vehicle around and pulled up behind the truck with his emergency lights on while it was still in the intersection. As he approached the driver’s door he noted a liquid coming out of the driver’s door jamb that was foaming on the ground. He went to the driver’s door but the driver did not roll down his window, so he opened the door.

He observed the accused behind the wheel, his clothing was rumpled and dirty and he looked dishevelled. He asked the accused for his driver’s licence and registration. While the accused was looking for these documents, the officer noticed liquid coming from behind the accused’s seat. He saw a beer box in the truck and when he looked behind the driver’s seat, he saw a tipped over beer bottle. [ 15 ] While this was going on, Constable Hall had pulled his police cruiser to the side of the road and went to the passenger’s side of the truck.

He opened the passenger door of the truck and heard Constable Reimer speaking to the driver. The accused looked over at him and he noticed that the accused had bloodshot, glassy eyes. He also noted that the accused had slurred speech and poor motor skills. [ 16 ] Based on the observations he made, Constable Reimer felt the accused was impaired and arrested him for impaired operation of a motor vehicle. He had the accused get out of the truck and accompany him to the police cruiser. As the accused walked to the police vehicle and while he was at the police vehicle, the officer noticed that he was swaying.

Constable Reimer put the accused in the back of the police cruiser and drove across the street to the Warman RCMP Detachment.

[17] Constable Hall also noticed that the accused was wobbly and having problems standing. He saw liquid leaking out of thetruck. He looked under the driver’s seat and saw an open bottle of beer tipped over and leaking. He noticed an open case of beer in thetruck. Constable Hall got into the accused’s truck and drove it into the detachment parking lot and left it there. He took what was left ofthe bottle of beer and the box of beer cans and dumped them out. [18] While in the detachment parking lot, Constable Reimer ran the licence plate on the truck to determine the registered owner.

He asked the accused his name and date of birth because the accused had not provided his licence. The information the accusedprovided matched that of the registered owner. At 1:39 a.m., Constable Reimer formally arrested the accused for impaired driving andread him his right to counsel, a breath demand and the police warning. [19] When asked if he wanted to call a lawyer, the accused responded “Nope”. When asked if he understood the police warning,the accused asked the officer to say it again. Constable Reimer read it again and the accused responded “So basically I’m fucked.

Isthat what you are saying?” The officer answered “I’m saying you don’t have to say anything. Do you understand?” To this the accusedresponded “I understand. Do you understand I make a living off my 1A?” [20] There was no breath instrument at the Warman RCMP Detachment. At 1:34 a.m., after reading the accused his rights,Constable Reimer drove him to the Martensville RCMP Detachment for breath testing.

On the way to Martensville, he called ConstableStrueby and asked her to attend to take the breath samples from the accused. [21] Constable Reimer and the accused arrived at the Martensville RCMP Detachment at 1:58 a.m. Once there, he put the accusedin a telephone room with a phone book to give him an opportunity to call a lawyer if he wished. The accused declined. At 2:00 a.m. hebegan an observation period of the accused. [22] At the time that Constable Reimer contacted her, Constable Strueby was investigating an alarm call at a building at acemetery.

She cleared the cemetery at approximately 2:00 a.m. and drove to the Martensville RCMP Detachment. She arrived there at2:14 a.m. Once at the detachment, she met with the accused and Constable Reimer, explained why she was there and checked theaccused’s mouth. She then proceeded to the breath room to begin the instrument set up process. [23] The accused provided his first sample into an Intoxilyzer at 2:24 a.m. Unfortunately, this sample was invalid due to mouthalcohol so the accused was returned to Constable Reimer for a further fifteen minute observation period.

At 2:44 a.m., the accusedprovided a satisfactory sample with a reading of .17. At 3:06 a.m. the accused provided a second successful sample with a reading of .17as well. Once the appropriate documentation was prepared, Constable Reimer served it on the accused and drove him home. ANALYSIS

a) Was the initial stopping of the accused by the police a breach of the accused’s

section 9 Charter right to be free from arbitrarydetention? [24] In this case Constable Reimer testified that once he saw the accused’s truck slide past the stop sign, he decided to stop thetruck and check the driver for sobriety as this was the same truck he had seen pulling away from the bar area, minutes earlier. [25] While

section 9 of the Charter guarantees that everyone has a right not to be arbitrarily detained or imprisoned,

section 209.1of The Traffic Safety Act, S.S. 2004, c.T-18.1, gives police legislative authority to randomly stop motor vehicles if the police are readilyidentifiable as peace officers and if they are in the lawful execution of their duties and responsibilities. Previous case law has determinedthat the phrase “lawful execution of their duties” includes checking for valid driver’s licences and vehicle registrations, mechanicalfitness of vehicles and sobriety of the driver. This same case law has found that the random power granted by

section 209.1 of TheTraffic Safety Act is a violation of

section 9 of the Charter however it is saved by

section 1 as demonstrably justified in a free anddemocratic society. See R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257 (S.C.C.); R. v. Houben, 2006 SKCA 129, [2006] S.J. No. 715 (Sask.C.A.); R. v. Anderson, [2013] S.J. No. 363 (Sask.Q.B.).

[26] Constable Reimer had the power to stop the accused pursuant to

section 209.1 of The Traffic Safety Act to check the accused’ssobriety. That is what he did. As a result, the initial stopping of the accused was lawful and there was no violation of the accused’ssection 9 Charter right at this stage.

b) Did Constable Reimer lack the reasonable grounds to make a breath demand on the accused thereby violating his

section 8and/or 9 Charter rights? [27] In R.v. Gunn, 2012 SKCA 80 , [2012] S.J. No. 503, the Saskatchewan Court of Appeal dealt with a Crown appealfrom a

summary conviction appeal court decision upholding the acquittal of Mr. Gunn on a charge of driving while over .08. The mainissue on the appeal was the proper

interpretation of “reasonable grounds to believe” found in section 254(3) of the Criminal Code. Inallowing the appeal and setting aside the acquittal, the Court reaffirmed the Supreme Court of Canada’s comments in R.v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 that an officer who makes a breath demand must subjectively believe that an accused hasbeen driving while impaired or over .08 and that belief must be objectively sustainable.

However, the Court reminded triers of fact that itis the officer’s specific reasons for making the breath demand that must be the basis of the assessment, that the officer need only believethat an accused’s ability to drive is slightly impaired and that the factors articulated by the officer need not prove that the accused wasactually impaired. Finally, the Court clarified that the law does not require that the officer dispel any innocent inferences which mightreasonably be drawn from his observations.

See Gunn, supra, at paragraphs 7, 8, 9, 15, 18, 20 and 22. [28] In this case, Constable Reimer testified that he arrested the accused for impaired driving based on the following observations:

a) he saw the accused’s truck leaving the bar area;

b) he saw the accused’s truck slide through a stop sign with an aggressive braking and a very hard braking action;

c) he noticed liquid running out of the driver’s side door jamb that was foaming in a manner consistent with beer;

d) the driver’s window was rolled up and there was no attempt by the accused to roll it down and make contact with the officer;

e) when he opened the driver’s side door, he smelled beer and observed a bottle of beer behind the driver’s seat, tipped over;

f) the accused was dishevelled and had mussed up hair and clothing;

g) when the accused was looking for his driver’s license, his motions were very slow, deliberate and unsure;

h) the accused’s speech was very slow and deliberate and the accused seemed to consider his words longer before he was able to saythem;

i) the accused’s speech was slightly slurred;

j) the accused’s eyes appeared droopy. [29] I am satisfied that Constable Reimer made all of the aforementioned observations prior to making his breath demand on theaccused. He was forthright in his testimony, he did not appear to embellish his evidence and for as many signs of impairment that hesaid he noted, there were signs that he admitted he did not. There was no evidence that the officer was rude or acted inappropriately with

the accused and there was nothing to lead me to conclude that he had it out for the accused. Finally, while Constable Hall’s involvementwith the accused was limited, he made some of the same observations that Constable Reimer did. As a result, I conclude that ConstableReimer had an honest belief that the accused’s ability to drive was impaired in the early morning hours of May 5, 2012. [30] I am also satisfied on the evidence that his belief was objectively reasonable.

He noticed the accused’s truck leaving the areaof the Warman Hotel and Bar minutes before he witnessed this truck slide through a stop sign, almost hitting a police cruiser. He sawwhat looked like beer leaking out of the accused’s driver’s door and as soon as he opened the door he confirmed that it was beer comingfrom a tipped over beer bottle. The accused was dishevelled, his speech was a bit slurred, his eyes were droopy and his motions wereslow and deliberate.

On this evidence alone, a reasonable person standing in the shoes of Constable Reimer would have no hesitationbelieving that the accused’s ability to operate a motor vehicle was impaired to some degree. [31] Therefore I find that Constable Reimer did have reasonable grounds to make a breath demand on the accused and as such,there was no violation of the accused’s sections 8 or 9 Charter rights.

c) If any of the sections 8 and/or 9 Charter breaches are made out, should the evidence obtained as a result of those breaches beexcluded pursuant to section 24(2) of the Charter? [32] Since I have concluded that neither the accused’s sections 8 or 9 Charter rights were violated in this case there is no need forme to consider the applicability of section 24(2) of the Charter and I decline to do so.

d) Were the accused’s breath tests taken “as soon as practicable” as required by section 258(1)(

c) of the Criminal Code? [33] An evidentiary shortcut available to the Crown to prove that an accused’s blood alcohol was greater than .08 by way ofcertificate evidence is found in

section 258 of the Criminal Code. The Crown’s ability to rely on a certificate is predicated on a numberof requirements. One of these requirements is that the samples of an accused’s breath must be taken as soon as practicable after theoffence was alleged to have been committed. [34] There has been numerous judicial comment on the phrase “as soon as practicable”. It is now accepted that this phrase doesnot mean as soon as possible but rather, as soon as reasonably can be expected. See R. v. McCoy, (SK KB), [1990]S.J. No. 657 (Sask.Q.B.); R. v. Carriere, [2010] S.J. No. 499 (Sask.Prov.Ct.) at paragraph 58; R. v.

Burwell, [2012] S.J. No. 422(Sask.Prov.Ct.) at paragraph 18. [35] In this case, the evidence suggests the following timing: 1:30 a.m. - Constable Reimer first noticed the accused’s truck leaving the Warman Hotel and Bar area; 1:39 a.m. - Constable Reimer arrested the accused for impaired driving and read him his right to counsel, a breath demand and the policewarning; 1:44 a.m. - Constable Reimer left with the accused for the Martensville RCMP detachment; 1:58 a.m. - the accused is in the phone room at the Martensville RCMP detachment.

Constable Reimer and the accused arrived at thedetachment just before this; 2:00 a.m. - Constable Reimer began an observation deprivation period of the accused; 2:14 a.m. - Constable Strueby, the breath technician arrived, introduced herself to the accused, and checked his mouth;

2:16 a.m. - Constable Strueby leaves to prepare the breath instrument for the tests; 2:23 a.m. - the accused provided his first sample. The result was aborted; 2:44 a.m. - the accused provided a second sample with a reading of .17; 3:06 a.m. - the accused provided a third sample with a reading of .17. [ 36 ] There is no evidence as to the exact time that Constable Reimer stopped the accused however it is safe to infer that it was within a few minutes of 1:30 a.m. From the time he stopped the accused until 1:39 a.m., the officer was dealing with the accused.

He was asking questions, making observations and waiting for the accused to provide his driver’s license and vehicle registration. Eventually, his observations led him to conclude that the accused was impaired and he advised the accused he was under arrest for impaired driving. He took him back to his police cruiser, searched him and placed him in the backseat. [ 37 ] Between 1:39 a.m. and 1:44 a.m., Constable Reimer pulled his police cruiser across the street and stopped in the Warman RCMP detachment parking lot.

There he read the accused his right to counsel, breath demand and the police warning and made notes in his notebook about the accused’s verbatim answers to the things that he had read him. [ 38 ] There was no breath instrument at the Warman RCMP detachment. The closest detachment with a breath instrument was Martensville detachment which was some six to eight kilometres away. At 1:44 a.m. Constable Reimer left the Warman detachment parking lot and drove directly to the Martensville detachment.

On the way, he radioed for Constable Strueby to attend to the Martensville detachment to perform the breath tests on the accused. He arrived at the Martensville RCMP Detachment just before 1:58 a.m. [ 39 ] After arriving at the Martensville detachment with the accused, Constable Reimer put him in a phone room and gave him the opportunity to contact legal counsel if he now wished to do so. The accused declined.

At 2:00 a.m., Constable Reimer began an observation deprivation period of the accused to ensure that he did not ingest anything and to allow any mouth alcohol to dissipate. [ 40 ] At the time that Constable Strueby received the radio call from Constable Reimer to attend to the Martensville detachment to perform breath tests, she was investigating an alarm at a cemetery somewhere in the district. She advised Constable Reimer she would attend to perform the tests as soon as she finished at the cemetery.

According to her testimony, she cleared the cemetery at 2:00 a.m. and drove straight to the Martensville detachment. She arrived at the detachment at 2:14 a.m. and immediately met with the accused and Constable Reimer and explained why she was there. She checked the accused’s mouth to satisfy herself that there wasn’t anything in his mouth and then left to prepare the Intoxilyzer EC/IR II for the accused’s breath tests. [ 41 ] It took some five or so minutes for the breath machine to be readied for the first test.

At 2:23 a.m. the accused provided his first sample however the breath machine aborted due to the existence of mouth alcohol. I was advised that in such a circumstance, there must be a further fifteen minute observation period to ensure dissipation of the mouth alcohol before another test can be performed. Constable Reimer took the accused back to an interview room where he observed the accused and waited for Constable Strueby to call them back for another test. [ 42 ] Shortly before 2:44 a.m. Constable Strueby called them back to the breath testing room.

The accused blew into the Intoxilyzer and at 2:44 a.m. a suitable sample with a reading of .17 was obtained. Following the mandated twenty minute waiting period after a successful sample, the accused provided his next sample. At 3:06 a.m. the breath machine indicated that the accused’s third sample was suitable and its reading was also .17. [ 43 ] The approximately 96 minutes from the time the accused was stopped by Constable Reimer at the intersection of 6 th Avenue

and Klassen Street in Warman until he provided his second suitable breath sample in the breath testing room at the Martensville RCMP detachment has been adequately explained. There were no improper delays on the facts.

I have no hesitation in concluding that the breath tests were taken as soon as reasonably could be expected in this case. [ 44 ] In arguing that the breath tests were not taken as soon as practicable, Defence counsel made much of the fact that Constable Reimer was a qualified breath technician and could have taken breath samples from the accused rather than calling Constable Strueby to come and do that. He took issue with Constable Reimer’s practice that despite the fact that he was a qualified breath technician, if he is the arresting officer he will call another breath technician to come and do the tests.

The problem with this argument is that the time frames in this case would be the same regardless of whether Constable Reimer or Constable Strueby performed the breath tests on the accused. [ 45 ] Had Constable Reimer acted as investigating officer and breath technician, he still would have had to observe the accused for a fifteen minute period after giving the accused an opportunity to call legal counsel. Consequently, he could not have left the accused to prepare the Intoxilyzer for the breath tests until 2:15 a.m. at the earliest.

He could not have taken the accused into the breath testing room and observed him while he prepared the breath instrument because the whole point of the observation period is to ensure that the accused did not ingest anything or have any mouth alcohol. If he was in the breath testing room and had mouth alcohol then he could very well have contaminated the air in the room and compromised the testing procedure. [ 46 ] In this case, while Constable Reimer was observing the accused Constable Strueby arrived. She spoke to the accused at 2:14 a.m. and began preparing the machine at 2:16 a.m.

As a result, irrespective of Constable Reimer’s practice and which one conducted the test, the time until the samples were taken would have been the same. [ 47 ] Defence counsel also argued that Constable Hall could have and should have attended at the Martensville detachment to assist Constable Reimer. Had he attended, Constable Reimer could have been warming up the machine while Constable Hall was observing the accused. However, even if this had occurred, the time saved would only have been minutes.

Constable Hall still would have had to have observed the accused until 2:15 a.m. before any testing could have occurred. The potential saving of a few minutes in this case does not make what actually occurred unreasonable. [ 48 ] I am satisfied that in this case, the accused’s breath tests were taken as soon as practicable as required by section 258(1) (

c) of the Criminal Code and as such, the Crown can rely on the presumption set forth in that section.

e) Has the Crown proven beyond a reasonable doubt that the accused was driving his motor vehicle while his ability to do so was impaired? [ 49 ] Proof beyond a reasonable doubt of driving and any degree of impairment from slight to great is enough to satisfy the requirements of section 253(1) (

a) of the Criminal Code . Here, Constable Reimer observed the accused’s vehicle leaving the area of a local bar and minutes later, sliding through a stop sign and almost striking Constable Hall who was proceeding through the intersection. Immediately upon attending to the accused’s truck, he noted beer leaking out of the door jamb of the driver’s side door. The accused was the only person in the truck. Constable Reimer observed the accused to be dishevelled, his motions were slow, deliberate and unsure, his speech was slow and slightly slurred and his eyes appeared droopy.

After removing the accused from his truck, Constable Reimer noted the accused to be wobbly and unsteady on his feet. [ 50 ] Constable Hall noted that the accused’s eyes were bloodshot and glassy, the accused’s speech was slurred and he had poor motor skills. He also observed liquid leaking out of the driver’s door of the accused’s truck, found a tipped over beer bottle behind the driver’s seat and an open case of beer in the truck.

When the accused was being escorted from his truck to the police cruiser, Constable Hall observed him to be wobbly and have trouble standing. [ 51 ] I am satisfied, beyond a reasonable doubt, on these facts, that in the early morning hours of May 5, 2012, the accused’s ability to operate a motor vehicle was impaired. CONCLUSION

[52] The accused’s Charter rights were not breached in this case and as such, the exhibits from the voir dire will be entered as fullexhibits on the trial proper. The evidence in the Certificate of Qualified Technician satisfies me that the accused’s blood alcoholreadings at 2:44 a.m. on May 5, 2012 was 170 milligrams of alcohol in 100 millilitres of blood, and at 3:06 a.m. that same day, 170milligrams of alcohol in 100 millilitres of blood. The Crown is entitled to rely on the presumption in section 258(1)(

c) of the CriminalCode that these readings are indicative of the accused’s blood alcohol at the time of driving. I am therefore satisfied beyond a reasonabledoubt that the accused’s blood alcohol at the time he was driving was over .08 and I find him guilty of section 253(1)(

b) of the CriminalCode. [53] The evidence has also established beyond a reasonable doubt that the accused was driving while his ability to do so wasimpaired and as such, he is also guilty of section 253(1)(

a) of the Criminal Code. Given the accused’s conviction on the charge ofdriving while over .08 and considering the rule against multiple convictions set forth in R. v. Kienapple, (SCC), [1975] 1S.C.R. 729 (S.C.C.) I enter a judicial stay on the charge of impaired driving. D.E. Labach, J