Mar 17, 2014

Summary of R. v. Bachinski

R. v. Bachinski, 2007 SKPC 140 (CanLII)
The accused is charged with fleeing from the police contrary to s. 249.1(1) of the Criminal Code, impaired driving contrary to s. 255(1) and s. 253(a) of the Code and driving while over .08 contrary to s. 253(b) and s. 255(1) of the Code.HELD: 1) On the charge of fleeing from the police contrary to s. 249.1(1) of the Code, the only reasonable conclusion is that the accused was the operator of the motor vehicle that was being pursued by the police and that he failed to stop as soon as was reasonable in the circumstances. He had a number of opportunities to stop but did not do so and in fact when he did stop he left the vehicle running and ran away. The Court concluded he did not stop as soon as was reasonable in the circumstances. There is ample evidence on which the Court can infer his intent. He eluded the police by driving through alleys and streets and continued to do so even when emergency lights on the police vehicle were engaged and as well as when the police siren was used. The accused is guilty on this charge. 2) The Certificate of Analysis filed with the Court states that the first sample was taken at 02:12 and the second was taken at 02:34. The form used appears to be the standard form and shows that there was twenty-two minutes between the taking of the samples. There was no viva voce evidence from the intoxilyzer technician as to the time of the commencement of the second sample to supplement the Certificate. This Court is bound by the decision in R. v. Elliott 2005 SKQB 376. The Certificate is not admissible in that it did not provide the time of the commencement and completion of the first sample and the commencement of the second sample so that this Court can determine whether there was the fifteen minutes required under s. 258(1)(c)(ii) of the Code between samples. 3) There is no breach of s. 8 or s. 9 of the Charter. The evidence is the accused was seen leaving the bar, erratic and unusual driving, some unexplained stumbling while running indicating some problem with motor skills, his speech was slow, eyes were glassy, facial features relaxed and the smell of alcohol on his breath. When considering them as a whole there were objective grounds for the breath demand. 4) The accused may have taken some time to actually contact a lawyer, he eventually did so and the Court concludes on his own evidence that he was satisfied with the advice. He never advised the police that he wanted further advice and his own evidence is conflicted on this point. This is not a case where there is a question as to whether there was a valid waiver. The accused advised the police he had spoken to a lawyer and was ready to proceed with breath tests. There was no breach of his s. 10 rights. 5) Considering the evidence in its totality, the unusual route the accused drove, the failure to abide by traffic laws the speeding in the back alleys, the precipitous exit from his vehicle while leaving the engine running when he stopped, the stumbling during the foot chase, the relaxed facial and general condition of the accused, the presence of watery glassy eyes and slowness of speech, and smell of alcohol on his breath, the Court finds there is sufficient evidence under the case law tests to prove the accused's ability to operate a motor vehicle was impaired by alcohol. He is guilty of impaired driving.