R v. Dwivedi Date:, 2017 BCPC 8

Citation: R v. Dwivedi Date: 20170119 2017 BCPC 0008 File No: 99821-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHIRISH DWIVEDI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Crown: Ms. Laura Drake Counsel for the Accused: Mr. Jeremy Carr Place of Hearing: Kamloops , B.C. Date of Hearing: October 27, 2016 Date of Judgment: January 19, 2017

INTRODUCTION [ 1 ] Just after 6:00 a.m. on Saturday, April 11, 2015, Shirish Dwivedi embedded the car of his friend, Satinderpal Gill, into the side of a dentist’s office at the corner of St. Paul Street and First Avenue in downtown Kamloops. Fortunately, neither Mr. Dwivedi nor Mr. Gill was seriously injured. [ 2 ] Various witnesses who came upon the scene, including the investigating officer, Cst. Stephen Merrick, observed signs that Mr. Dwivedi may have been impaired by alcohol. A little more than two hours after the accident, Mr. Dwivedi provided two breath samples which both indicated that Mr.

Dwivedi had 130 mg of alcohol in 100 millilitres of his blood (130 mg%) at the time the samples were taken. [ 3 ] Mr. Dwivedi is charged with having care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code and while having a concentration of alcohol in his blood which exceeded 80 mg%, contrary to s. 253(1)(

b) of the Criminal Code . [ 4 ] Mr. Dwivedi admits that he was driving Mr. Gill’s car but denies that his ability to do so was impaired by alcohol and that he had a blood alcohol concentration of greater than 80 mg% at the time of the accident. He says that the accident was simply a result of him being an inexperienced driver and driving an unfamiliar car that had after-market modifications. Mr. Dwivedi relies on certain observations of various witnesses immediately after the accident which suggest he was not impaired and offers explanations for the remaining observations of possible impairment. Mr.

Dwivedi submits that the breath sample results are inadmissible because Cst. Merrick did not form the appropriate opinion and did not have reasonable grounds to make a breath demand. Mr. Dwivedi also submits that the invalid demand constituted a breach of Mr. Dwivedi’s right under s. 8 of the Charter to be free from unreasonable search and seizure and that the results of the breath samples must, therefore, be excluded. In any event, Mr. Dwivedi explains the breath sample readings by his consumption of a two or three ounce drink of vodka shortly before the accident. Finally, Mr.

Dwivedi takes issue with parts of an expert opinion tendered by the Crown based primarily on what he says are incorrect assumptions about his body weight. ISSUES [ 5 ] I will analyse the issues in the following order: 1. Did Cst. Merrick form the appropriate opinion to make a valid breath demand? 2. Did Cst. Merrick have reasonable grounds to make a valid breath demand? 3. If Cst. Merrick did not make a valid breath demand, are the breath sample results inadmissible under the Criminal Code ? 4. If Cst. Merrick did not make a valid breath demand, are the breath sample results inadmissible under the Charter ? 5.

Is there sufficient evidence to establish that Mr. Dwivedi was operating Mr. Gill’s car with a blood alcohol concentration of more than 80 mg%? 6. Is there sufficient evidence to establish that Mr. Dwivedi was operating Mr. Gill’s car while his ability to do so was impaired by alcohol? BACKGROUND [ 6 ] Before turning to my analysis, I will first set out more of the background. Most of the background is not in dispute. [ 7 ] In April 2015, Mr. Dwivedi and Mr. Gill were international students and classmates at Thompson Rivers University (TRU) studying computing science.

They had first met in India when they were studying in the same program and continued their studies together at TRU. [ 8 ] Mr. Dwivedi and Mr. Gill wrote their final exam of the spring semester on April 10, 2015. Later that night at about 10:30 or 10:45 p.m., Mr. Gill picked up Mr. Dwivedi in his standard transmission Mitsubishi Eclipse. Mr. Dwivedi and Mr. Gill went to a liquor store where they purchased a 750 mL bottle of vodka to take to a get-together at their friend Tanya’s place. Tanya lived on Seymour Street within a couple of blocks of the scene of the accident. [ 9 ] Mr. Dwivedi and Mr.

Gill shared a drink of vodka and Coke together around midnight. Though there were only eight or ten people at the get-together, Mr. Dwivedi and Mr. Gill appeared to have then lost track of each other. Mr. Gill continued to drink and admitted to being quite drunk and having a poor memory of events. Mr. Dwivedi says that he spent the rest of the night helping Tanya with an assignment, eating, talking with friends and playing the guitar. [ 10 ] Mr. Dwivedi says that he did not have another drink until about ten minutes before he and Mr. Gill left the get-together.

At that time, he poured himself a fairly strong drink of two or three ounces of vodka mixed with Coke. Mr. Gill has a vague memory of sharing a drink with Mr. Dwivedi at about that time. Mr. Dwivedi says he finished his drink about five minutes before leaving the party. He says he poured the drink before deciding to leave the party then decided to leave shortly after the drink was poured when he saw that no one else was there. Mr. Dwivedi decided to finish his drink before leaving and decided to drive Mr. Gill’s car because Mr. Gill was quite drunk and they only had to drive a few blocks. Mr.

Dwivedi maintained that he was “exactly fine” and “not drunk”. [ 11 ] Mr. Gill testified that his car had after-market work done such that it had “very good horsepower” which gave the car “really fast acceleration”. Mr. Gill agreed in cross-examination that “if you touch the gas, the car takes off”. [ 12 ] Mr. Dwivedi had a driver’s licence from India but says he had never driven in Canada, had never driven a car with a standard

transmission and had never driven Mr. Gill’s car. Mr. Dwivedi says he simply lost control of the car causing it to leave the road and become embedded in the dentist’s office two minutes after leaving Tanya’s. Mr. Dwivedi maintains that his alcohol consumption did not affect his driving or the accident “in any way”. [ 13 ] Mr. Gill has no memory of the accident. In fact, Mr. Gill has no memory of leaving the get-together. This appears to be due to his level of intoxication. There was no evidence that his memory loss was due to head trauma. [ 14 ] The first witness who came upon the scene was Greg Baker. Mr.

Baker happened to be driving up First Avenue shortly after the accident on his way to the Royal Inland Hospital (RIH) to pick up his wife who had just had surgery. [ 15 ] When Mr. Baker came upon the scene, he was shocked. No one was around and he wondered why no police were on the scene. Mr. Baker thought the accident must have occurred the night before. Mr. Baker pulled over to take a photograph of the car he saw “inside a building”. As he was doing so, he saw the driver’s side door open and Mr. Dwivedi get out. A couple of minutes later he also saw Mr. Gill get out. [ 16 ] Mr. Baker spoke to Mr.

Dwivedi for a couple of minutes to make sure he was okay. Mr. Baker described Mr. Dwivedi as slurring, stumbling, smiling and laughing. When Mr. Baker said he would phone the police, Mr. Dwivedi said that he and Mr. Gill were fine and asked Mr. Baker not to. Mr. Dwivedi made Mr. Baker nervous. Mr. Baker said he was not close enough to smell alcohol on Mr. Dwivedi but thought he was “definitely drunk” or “on something”. Mr. Baker backed off and called the police. [ 17 ] In cross-examination, Mr.

Baker acknowledged seeing that the accident was serious, that the airbags had been deployed and that there was a “good chance someone might be injured or shocked” as a result of the accident. Mr. Baker also acknowledged that he spoke to Mr. Dwivedi in an area which was “uneven” and “messy” and that he was unfamiliar with how Mr. Dwivedi normally speaks. [ 18 ] The second witness on the scene was Mark Bartle who had been working in his office on the second floor, immediately above the dentist’s office.

He heard a car engine revving and squealing tires just before hearing and feeling the impact of something hitting the building. He grabbed a pen and some paper and exited the building. As he walked down First Avenue, he saw Mr. Gill’s car embedded in the side of the building. [ 19 ] Mr. Bartle saw Mr. Dwivedi standing near the vehicle as Mr. Gill was getting out of the car. He approached them and asked if they were okay. He noticed that Mr. Dwivedi had a cut on his hand or arm. As Mr. Bartle looked him over, Mr. Dwivedi indicated that he did not want the police to be called. Mr.

Dwivedi said he had money and could take care of the problem. Mr. Bartle smelled alcohol coming from Mr. Dwivedi and observed that he was agitated. Mr. Gill also appeared to be agitated and indicated that he did not want the police to be called. [ 20 ] Mr. Bartle asked who had been driving and Mr. Dwivedi indicated that he was the driver. Mr. Bartle asked to see Mr. Dwivedi’s driver’s licence which Mr. Dwivedi produced. Mr. Bartle wrote down Mr. Dwivedi’s name and driver’s licence number. [ 21 ] Mr. Bartle encouraged Mr. Dwivedi and Mr. Gill to sit down to wait for an ambulance then gave a nod to Mr.

Baker to call the police. Mr. Bartle felt it was appropriate to involve the police because he had smelled alcohol on Mr. Dwivedi, and felt “there could be an impaired driving situation”. Mr. Bartle was also concerned that Mr. Dwivedi and Mr. Gill were getting so agitated that “a confrontation might unfold”. [ 22 ] Mr. Bartle remained on the scene for a couple of hours dealing with the police, an insurance adjuster and trades who arrived on the scene. He last saw Mr. Dwivedi with an ambulance attendant. Mr. Bartle overheard Mr.

Dwivedi tell the ambulance attendant he had been drinking. [ 23 ] In cross-examination, Mr. Bartle acknowledged that, other than the smell of alcohol, Mr. Dwivedi did not exhibit any other signs of impairment. Mr. Dwivedi had not been slurring his words or stumbling even though he was standing on a sloped area beside the building. Mr. Dwivedi did not have any difficulty producing his driver’s licence. The smell of alcohol on Mr. Dwivedi was not strong and could have been emanating from Mr. Dwivedi’s clothes. [ 24 ] In response to a 911 call from Mr. Baker, Cst.

Merrick, was dispatched from the nearby RCMP Detachment and was on the scene promptly. After surveying the scene, Cst. Merrick learned that the driver was in an ambulance. [ 25 ] Cst. Merrick spoke to Mr. Dwivedi in the ambulance. Mr. Dwivedi produced his Indian Union Driver’s Licence. Cst. Merrick observed that Mr. Dwivedi was bleeding from his hand and that the whites of his eyes were “pinkish/red”. Cst. Merrick noted a “sour smell” of alcohol and body odour coming from Mr. Dwivedi and noted that he was upset and speaking loudly. [ 26 ] As a result of his observations and his conversation with Mr. Dwivedi, Cst.

Merrick formed the opinion that Mr. Dwivedi was impaired by alcohol. At 6:33 a.m., Cst. Merrick read a standard breath demand to Mr. Dwivedi from a card to which Mr. Dwivedi replied “Sir, I just had two shots”. Cst. Merrick then arrested Mr. Dwivedi for impaired operation of a motor vehicle and read from a card to inform Mr. Dwivedi of his rights on arrest. [ 27 ] On the recommendation of the paramedics on the scene, Cst. Merrick took Mr. Dwivedi to RIH where a bandage was put on the cut on his hand. Cst. Merrick remained with Mr. Dwivedi at RIH and observed that Mr. Dwivedi did not seem to be very hurt. Cst.

Merrick overheard Mr. Dwivedi speak to someone on the phone, telling that person he was not hurt. [ 28 ] From the hospital, Cst. Merrick took Mr. Dwivedi to the RCMP Detachment to provide samples of his breath. While at the detachment, Mr. Dwivedi volunteered that the brakes on the car did not work and that he had consumed two shots of vodka between 12:30 and 1:00 a.m. Mr. Dwivedi was very upset and there was “a lot of crying”. [ 29 ] After speaking to a lawyer and waiting through standard observation periods, Mr. Dwivedi provided two breath samples at 8:23 and then 8:43 a.m.

The results from the Intox EC/IR II showed that Mr. Dwivedi had 130 mg of alcohol in 100 millilitres of his blood

(130 mg%) in both samples. No issue was taken with the operation of the Intox EC/IR II nor with the accuracy of the results. [ 30 ] Altogether, Cst. Merrick was with Mr. Dwivedi for over three hours. During that time, Mr. Dwivedi did not ingest anything, consume any alcohol, burp, vomit or have anything in his mouth. Cst. Merrick also indicated that Mr. Dwivedi’s signs of impairment did not really change over time. [ 31 ] In cross-examination, Cst. Merrick acknowledged that the redness in Mr. Dwivedi’s eyes could have been as a result of the airbag striking his head or as a result of his crying. Cst.

Merrick also acknowledged that Mr. Dwivedi did not fumble while producing his driver’s licence. Finally, Cst. Merrick acknowledged that Mr. Dwivedi mentioned that he was a student and that Mr. Dwivedi may not have wanted police involvement because he may have to leave the country. [ 32 ] Mr. Dwivedi’s breath samples were taken by a qualified technician named Cpl. Kelly Butler. On entering the Breath Tech Room, Cpl. Butler detected a mild odour of alcohol. Initially, Cpl. Butler could not identify where the odour was coming from but when she took breath samples from Mr. Dwivedi, Cpl. Butler was closer to Mr.

Dwivedi and detected an odour of stale alcohol coming from Mr. Dwivedi’s breath. During her interactions with Mr. Dwivedi, Cpl. Butler found him to be polite and cooperative. Mr. Dwivedi volunteered that he had a couple of drinks around midnight. After Cpl. Butler gave Mr. Dwivedi the breath sample results, Mr.

Dwivedi volunteered that “maybe those drinks were bigger”. [ 33 ] RCMP National Forensic Laboratory Services Forensic Alcohol Specialist, Karen Chan, was qualified to give opinion evidence regarding the physiology of alcohol, including the absorption, distribution and elimination of alcohol from the human body and regarding the pharmacology of alcohol, including the effects of alcohol on behaviour and motor function and how this relates to the operation of a motor vehicle. No issue was taken with Ms. Chan’s expertise nor with her opinions. [ 34 ] Ms.

Chan confirmed two calculations which had been performed by a colleague, Clifton Ho, whose report was filed as an Exhibit. [ 35 ] Ms. Chan first confirmed Mr. Ho’s calculation that an individual having a blood alcohol concentration of 130 mg% at 8:23 a.m. would have had a blood alcohol concentration of 151 to 173 mg% at 6:15 a.m. Ms. Chan confirmed that this calculation was performed using standard alcohol elimination rates of 10 to 20 mg% per hour to the measured blood alcohol concentration and is independent of the individual’s gender and body weight.

The calculation assumed that no alcohol was consumed from 30 minutes before 6:15 a.m. to the time the sample was taken at 8:23 a.m. If that assumption proved to be incorrect and the individual had consumed alcohol during that time period, Ms. Chan explained that the calculated blood alcohol concentration would be too high by an amount proportional to the amount of alcohol consumed. Ms. Chan also confirmed that the individual’s blood alcohol concentration would vary by no more than 5 mg% within fifteen minutes on either side of 6:15 a.m. Ms.

Chan explained that the standard elimination rate used applies to 90% of the population. [ 36 ] Ms. Chan next confirmed Mr. Ho’s calculation that to have a blood alcohol concentration of 80 mg% at 6:15 a.m., a 56.8 kg male would have to have 3.0 to 3.9 ounces of 40% alcohol by volume liquor in his stomach, unabsorbed, at that time in order to produce a measured blood alcohol concentration of 130 mg% at 8:23 a.m. Ms. Chan confirmed Mr. Ho’s written statement that there would be no significant change in the calculated amount if the individual was 5 kg heavier or lighter than the assumed weight of 56.8 kg. Ms.

Chan confirmed that a greater change in body weight would change her calculation but she was not asked and did not explain how. Ms. Chan also confirmed this calculation represented a theoretical minimum and that the actual amount of unabsorbed alcohol in the individual’s stomach might have to be up to twice as much to result in a reading of 130 mg% at 8:23 a.m. [ 37 ] In cross-examination, Ms. Chan was asked a series of questions regarding the impact on the calculations if a person was eating within 20 minutes of operating a motor vehicle. Based on the scientific literature, Ms.

Chan maintained that the person’s blood alcohol concentration would reach 80% of its peak within ten minutes and reach its peak in about 30 minutes after the last drink. If the person had food on his stomach, Ms. Chan testified that the peak concentration could remain longer. [ 38 ] Ms. Chan also gave evidence about the expected physiological effects on an average social drinker at various blood alcohol concentrations. Germane to this case, at less than 50 mg%, few, if any observable symptoms would be apparent.

At 50 to 100 mg%, common observable symptoms may include bloodshot watery eyes, flushed face, an odour of alcohol on the breath and, at the higher end of this range could include problems with balance and coordination and slight speech defects. In addition to these symptoms, at 100 to 150 mg%, observable symptoms may include problems with balance, motor control and coordination and slurred speech.

At 150 to 300 mg%, observable symptoms become more intense and may create marked problems with balance, motor control and coordination, staggered gait, slurred speech, exaggerated emotional state, impaired memory and confusion. ANALYSIS Statutory Scheme [ 39 ] I will start my analysis by setting out the relevant parts of the statutory scheme.

The relevant sections of the Criminal Code provide as follows: 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. …

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood… Did Cst. Merrick form the appropriate opinion to make a valid breath demand? [40] The parties agree that a peace officer must form the opinion that a driver is committing an offence or within the preceding threehours committed an offence under s. 253 as a result of consuming alcohol in order to make a valid breath demand. While it is true thatCst. Merrick only testified that he formed the opinion that Mr.

Dwivedi was impaired, he was testifying about his investigation of animpaired driving offence. I am satisfied on all of the evidence that Cst. Merrick also had the opinion that Mr. Dwivedi had committed anoffence under s. 253 shortly (meaning minutes) before Cst. Merrick arrived on the scene and that he failed to say this in his testimonysimply as a result of oversight. I base my conclusion on the following: 1. Cst. Merrick responded promptly to the dispatch and was the first officer on the scene; 2. On arrival, Cst. Merrick observed Mr. Gill’s car embedded into the side of a building; 3. Cst.

Merrick made inquiries to determine who and where the driver was; 4. Cst. Merrick quickly learned that the driver was in an ambulance and promptly identified Mr. Dwivedi as the driver; 5. Cst. Merrick noted that Mr. Dwivedi had pinkish/red eyes, was speaking loudly, was upset and had an odour of alcohol comingfrom him; and 6. As a result of his observations, Cst. Merrick formed the opinion that Mr. Dwivedi was impaired by alcohol and read a standardbreath demand to him which included words taken directly from s. 254 of the Code. [41] I agree with the words of Grannary, PCJ at paragraph 8 of R. v.

Litwyn, 2002 BCPC 395 that “(y)ou form your opinion and youread the demand. The reason you read the demand is because that is what you believe on reasonable and probable grounds.” In thiscase, even though Cst. Merrick did not express himself perfectly during his testimony, I find on all of the evidence that the only reasonCst. Merrick made the breath demand was because he had formed the appropriate opinion prior to making the demand. Did Cst. Merrick have grounds to make a valid breath demand? [42] Mr. Dwivedi submits that the grounds identified by Cst.

Merrick for making a breath demand of him only supported areasonable suspicion, and not the required reasonable grounds, that he had committed an offence under s. 253. [43] In R. v.

Alex, 2015 BCCA 435, in the context of an appeal from an “over 80” conviction, our Court of Appeal highlighted thedistinction between the phrases “reasonable grounds to suspect” and “reasonable grounds to believe” at paragraph 25 as follows: As the Crown emphasized in its factum, the phrase “reasonable grounds to suspect” (used to determine whether the accused is bound tocomply with an ASD request) connotes a lower threshold than “reasonable grounds to believe”, which appears in the opening words of s.254(3) used for breathalyzer analysis. This point was made by Karakatsanis J. for the Court in R. v.

Chehil 2013 SCC 49: … while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded inobjective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As aresult, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demandingreasonable and probable grounds standard… (Emphasis in original.) [44] In Alex, the Court also referred to R. v.

Bernshaw, (SCC), [1995] 1 SCR 254 to make clear that to havereasonable grounds to make a breath demand the investigating officer “must have both an actual subjective belief and objectivelyreasonable grounds” for that belief. (See paragraph 33. Emphasis in original.) [45] Mr. Dwivedi relies on the decision of this court in R. v. MacDonald, [2003] BCJ No. 3122, 46 MVR (4th) 245 (Prov. Ct.) insupport of his submission that Cst. Merrick could have had no more than a suspicion that Mr. Dwivedi had committed an offence unders. 253. [46] In MacDonald, it is true, as Mr.

Dwivedi submitted, that “the officer noted the vehicle weaving in its own lane, when it turnedleft it crossed over the centre lane, the driver fumbled with his wallet and had trouble providing his driver’s license, he had difficultyproducing his insurance papers and dropped them on the floor, he had red watery eyes, there was a strong odour of alcohol from thevehicle and (the driver had) slurred speech.” However, the trial judge reviewed video and audio recordings of the driving at issue andthe officer’s interactions with the driver and concluded that the driving was actually “not inconsistent with the manner of driving onewould expect from a sober person” and that the driver’s speech was “generally clear” and “inconsistent with a significant level ofimpairment by alcohol.” The officer had also acknowledged that the driver’s difficulties producing his driver’s licence and insurancepapers was consistent with nervousness.

As well, the trial judge concluded the officer had violated the driver’s Charter rights at theroadside and excluded certain evidence the officer relied on in determining he had reasonable and probable grounds to make a breathdemand. Given the officer’s own admission that he did not have reasonable and probable grounds without the excluded evidence, the

trial judge concluded that the evidence “constitue(

d) nothing more than a reasonable suspicion the accused was operating a motor withsome alcohol in his body.” [47] It is always difficult to compare the individual circumstances of two cases and, while there are some similarities, with thegreatest respect, Mr. Dwivedi’s case is not like the MacDonald case in at least one material respect. As noted, the trial judge inMacDonald observed a video recording of the accused’s driving and found it to be consistent with the driving of a sober person. On theother hand, in Mr. Dwivedi’s case, Cst. Merrick observed the aftermath of Mr. Dwivedi’s driving, namely that Mr.

Dwivedi hadembedded Mr. Gill’s car into the dentist’s office. While accidents do happen, Cst. Merrick was told nothing of the after-market workdone on Mr. Gill’s car nor of Mr. Dwivedi’s various forms of driving inexperience. From Cst. Merrick’s perspective, Mr. Dwivedi’sdriving represented an unexplained and marked departure from what would be expected of a sober driver operating a motor vehicle in theheart of an urban centre like Kamloops. [48] At the time Cst. Merrick made the breath demand, he had made observations of the aftermath of Mr. Dwivedi’s driving and hadobserved that Mr.

Dwivedi displayed a number of symptoms associated with alcohol consumption (pinkish/red eyes, odour of alcohol,loud speech and emotional demeanour). Cst. Merrick had also observed that Mr. Dwivedi did not fumble while producing his driver’slicence, had no difficulty communicating with Mr. Dwivedi, did not observe any other problems with coordination and had noinformation from others about what they had observed respecting Mr. Dwivedi. [49] This constellation of factors left open a number of possibilities. Mr. Dwivedi’s eyes may have been pinkish/red because he wasupset or had struck his head during the accident.

The odour of alcohol could have been from a recent ingestion of a modest amount ofalcohol. Mr. Dwivedi’s loud speech and emotional state could have been a result of being in shock or upset. The accident may just havebeen an accident. While each inculpatory factor may have had an innocent explanation, the combination of all factors, in my view,provided a reasonable objective basis for Cst. Merrick to believe that Mr. Dwivedi had probably committed an offence and to make avalid breath demand. If Cst.

Merrick did not make a valid breath demand, are the breath sample results inadmissible under the Criminal Code? [50] Having concluded that Cst. Merrick formed the correct opinion and had reasonable grounds to believe that Mr. Dwivedi hadcommitted an offence under s. 253 of the Code, in my view, Cst.

Merrick made a valid breath demand and the breath sample results areadmissible under the Code. [51] If I am wrong in my conclusion, the results are admissible in any event under the authority of the pre-Charter case of R. v.Rilling, (SCC), [1976] 2 SCR 183. [52] In Rilling, the Supreme Court of Canada ruled that a certificate confirming the results of a breathalyzer test was admissiblewhere an accused had submitted to the test even though the officer making the demand did not have reasonable and probable grounds tomake a breath demand.

Though a number of courts held that Rilling did not remain good law in the post-Charter era, in Alex, our Courtof Appeal held that Rilling remains operative in British Columbia until overturned by the Supreme Court of Canada.

The Court, atparagraph 3, emphasized that accused persons would be unlikely to be prejudiced by the ruling given that an accused person would “needonly invoke s. 8 of the Charter at the time the Crown proffers the evidence at trial, and the court will be bound to consider whether theadmissibility would bring the administration of justice into disrepute.” After a detailed analysis, the Court concluded at paragraph 52 asfollows: …[W]hile I might not have decided Rilling in 1975 in the same way that the majority of the Supreme Court did, the evolution ofjurisprudence under ss. 8 and 24(2) of the Charter has obviously provided a remedy – now more nuanced than previously – for theconscription of physical evidence by the police where reasonable grounds are not proven.

In my view, it would be counter-productivenow to rule that evidence may be excluded (presumably almost automatically as a matter of non-compliance with a statutory condition)on the basis of lack of reasonable and probable grounds, when exclusion is available under s. 8 if the admissibility of the evidence wouldbring the administration of justice into disrepute. The idea of having two separate tracks with slightly different reasoning applicable toeach, possibly different rules applicable thereto, and potentially different outcomes, seems to be a recipe for confusion and judicialinefficiency.

On the other side of the coin, the obligation on defence counsel to raise any Charter application when the evidence isbeing proffered, and the requirement to comply with applicable rules requiring prior notification to Crown counsel respecting Charterchallenges, are not onerous. I agree with the Court in Charette that this approach strikes an appropriate balance. (Emphasis in original.) [53] Applying Rilling and Alex, even if Cst. Merrick had not made a valid breath demand, absent a successful Charter challenge, theresults of the analyses of the breath samples would still have been admissible. If Cst.

Merrick did not make a valid breath demand, are the breath sample results inadmissible under the Charter? [54] Having found that Cst. Merrick had reasonable grounds to believe Mr. Dwivedi had committed an offence under s. 253, no issuearises under s. 8 of the Charter that the taking of two samples of Mr. Dwivedi’s breath amounted to an unreasonable search and seizure. [55] Even if there had been a breach of s. 8, the results of the analyses of the breath samples would have been admissible withoutreference to s. 24 of the Charter. No Charter notice was served prior to trial. No Charter issue was raised during Cst.

Merrick’stestimony. No voire dire was held to fully canvass Cst. Merrick’s grounds for making a breath demand to address any possible Charterissues. No Charter or other objection was made to the admissibility of the certificates setting out the results of the analyses of the breathsamples at the time they were proffered. Contrary to Alex, Mr. Dwivedi did not invoke the Charter at the time Cst. Merrick profferedhis testimony.

Further, there were no special circumstances which would justify a departure from the well-established principle that aCharter objection must raise no later than the time the Crown proffers the evidence at issue. (See also R. v. Luksicek, (BC CA), [1993] BCJ No. 524 (CA).) [56] In short, the results of the analyses of the breath samples are not inadmissible under the Charter. Is there sufficient evidence to establish that Mr. Dwivedi was operating Mr. Gill’s car with a blood alcohol concentration of more

than 80 mg%? [ 57 ] The crux of Mr. Dwivedi’s defence is that the results of the analyses of the breath samples are unreliable because two important assumptions underlying the analyses were inaccurate. One of these assumptions was that Mr. Dwivedi had not consumed any alcohol within 30 minutes of the accident and the other was that Mr. Dwivedi weighed within 5 kg of 56.8 kg. Mr. Dwivedi’s testimony was that he consumed a two to three ounce drink of vodka between seven and twelve minutes before the accident and that he weighed between 72 and 73 kg at the time.

No issue was taken with the assumption that the accident occurred at 6:15 am. [ 58 ] The key calculation performed by Mr. Ho and confirmed by Ms. Chan demonstrates that to have a blood alcohol concentration of 80 mg% at 6:15 a.m., a 56.8 kg male would have to have 3.0 to 3.9 ounces of 40% alcohol by volume liquor in his stomach, unabsorbed, at that time in order to produce a measured blood alcohol concentration of 130 mg% at 8:23 a.m. This was presented by Ms.

Chan as a conservative calculation in the sense that the actual amount of unabsorbed alcohol in the individual’s stomach might have to be up to twice as much to result in a reading of 130 mg% at 8:23 a.m. Ms. Chan also testified that absorption of alcohol into the blood begins on the entry of alcohol into a person’s mouth and that 80% is absorbed within 10 minutes of consumption. These opinions were not challenged or contradicted. [ 59 ] On Mr. Dwivedi’s own evidence, he consumed no more than three ounces of vodka between seven and twelve minutes before the accident. In the absence of evidence from Mr.

Dwivedi to the contrary, I conclude that this vodka had the standard 40% alcohol by volume used in Mr. Ho’s and Ms. Chan’s calculations. Based on Ms. Chan’s evidence, close to 80% of this alcohol would have been absorbed into Mr. Dwivedi’s bloodstream by the time of the accident. That would leave about 20% of a maximum of three ounces, which is 0.6 of an ounce, unabsorbed in Mr. Dwivedi’s stomach at the time of the accident. Even making an unjustifiably generous assumption that only 50% of the alcohol in Mr. Dwivedi’s last drink was unabsorbed in Mr. Dwivedi’s stomach at the time of the accident, Mr.

Dwivedi could have had at most 1.5 ounces of unabsorbed alcohol in his stomach at the time of the accident. This would be half the theoretical and conservative minimum calculated by Mr. Ho and Ms. Chan in order to produce a blood alcohol concentration of 130 mg% in a 56.8 kg male at 8:23 a.m. if starting from a blood alcohol concentration of 80 mg% at the time of the accident. [ 60 ] Even if I were to give Mr.

Dwivedi the benefit of the doubt and accept his evidence about his weight and last drink, based on science, math and common sense, I am unable to conclude that he may have had a blood alcohol concentration of less than 80 mg% at the time of the accident. According to Mr. Ho and Ms. Chan, a weight difference of 5 kg would not materially affect their calculations. I simply cannot believe that a further 10 or 11 kg would have such a profound impact on the results of the conservative calculations performed by Mr. Ho and Ms. Chan that I could have a reasonable doubt that Mr.

Dwivedi’s blood alcohol concentration at the time of the accident was below 80 mg%. [ 61 ] After carefully considering all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Dwivedi committed an offence under s. 253(1)(

b) of the Code by operating a motor vehicle with a blood alcohol concentration of greater than 80 mg%. Is there sufficient evidence to establish that Mr. Dwivedi was operating Mr. Gill’s car while his ability to do so was impaired by alcohol? [ 62 ] Given: 1. the nature and location of the accident; 2. the indicia of impairment by alcohol observed by Mr. Baker, Mr. Bartle, Cst.

Merrick and Corporal Butler; 3. the results of the analyses of the breath samples; 4. the expert evidence on blood alcohol concentrations at the time of the accident; 5. the consistency between the observed indicia of impairment and the expert evidence on the physiological effects associated with various blood alcohol concentrations; 6. the inconsistencies between what Mr. Dwivedi told Cst. Merrick and Cpl. Butler and what he told the court about his drinking pattern; and 7. the very unusual drinking pattern purportedly followed by Mr. Dwivedi, I do not believe Mr.

Dwivedi’s testimony about his drinking pattern and level of impairment, his testimony does not raise a reasonable doubt and the totality of the evidence leaves me with no reasonable doubt that Mr. Dwivedi committed an offence under s. 253(1)(

a) of the Code by operating a motor vehicle while his ability to do so was impaired by alcohol. CONCLUSION [ 63 ] I find Mr. Dwivedi guilty of both counts as charged. The Honourable Judge L.S. Marchand Provincial Court of British Columbia