R v Kizhakkiniyedath

R v Kizhakkiniyedath

The officer formed a subjective belief of impairment and that belief was objectively reasonable based on the cumulative effect of a dispatch 911 report of erratic driving and stumbling, the officer's observations (failure to comply with directions, difficulty handling licence, swaying, mumbling/slurred speech, odour of alcohol) and his training and experience; therefore the s.320.28(1) evidentiary breath demand was constitutionally valid, the breath samples and analysis were not obtained in a manner that infringed s.8, and the evidence was admissible (Charter application dismissed).

Citation
2024 NSPC 41
Parties
Prosecution: His Majesty the King; Accused: Vinay Menon Kizhakkiniyedath
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
12 August 2024
Procedural Posture
Criminal Impaired Driving Offences (summary) / Pre Trial Charter Application to Exclude Evidence; Blended Voir Dire/heard With Trial Evidence
Outcome
Charter application dismissed; evidence admitted
Legal Topics
Section 8 Charter Unreasonable Search and Seizure, Evidentiary Breath Demand (s.320.28(1)), Reasonable Grounds for Demand, Section 24(2) Exclusion of Evidence, Impaired Driving
Source Language
English
Constitutional Law Criminal Law Evidence Law Section 8 Charter Unreasonable Search and Seizure Evidentiary Breath Demand (s.320.28(1)) Reasonable Grounds for Demand Section 24(2) Exclusion of Evidence Impaired Driving

Case Brief

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Parties

His Majesty the King

Prosecution

Vinay Menon Kizhakkiniyedath

Accused

Procedural Posture

Criminal Impaired Driving Offences (summary) / Pre Trial Charter Application to Exclude Evidence; Blended Voir Dire/heard With Trial Evidence

Legal Issues

  1. 1 Whether the officer had subjective and objectively reasonable grounds under s.320.28(1) to demand evidentiary breath samples
  2. 2 Whether the breath samples and analysis were obtained in a manner that infringed s.8 of the Charter
  3. 3 If an s.8 infringement occurred, whether admission of the evidence would bring the administration of justice into disrepute under s.24(2)

Ratio Decidendi

The officer formed a subjective belief of impairment and that belief was objectively reasonable based on the cumulative effect of a dispatch 911 report of erratic driving and stumbling, the officer's observations (failure to comply with directions, difficulty handling licence, swaying, mumbling/slurred speech, odour of alcohol) and his training and experience; therefore the s.320.28(1) evidentiary breath demand was constitutionally valid, the breath samples and analysis were not obtained in a manner that infringed s.8, and the evidence was admissible (Charter application dismissed).

Court Disposition

Charter application dismissed; evidence admitted

Orders

  • Certificate of qualified technician (Exhibit 1) admitted
  • Certificate of Analyst (Exhibit 2) admitted