A Kelowna man accused of impaired and dangerous driving causing death is not attempting to escape guilt through “a technicality,” his lawyer told a B.C. Supreme court.
Instead, defence lawyer Rishi Gill said Tuesday that Jean-Paul Kowal has given a plausible reason why he tested more than three times the legal limit after a highway crash that killed Donovan Pippus — a reason he said the Crown cannot rule out.
Kowal testified he was not impaired before he crossed into the other lane, killing 17-year-old Pippus, who was driving the other direction on Highway 97A near Enderby. The 41-year-old testified in the aftermath of the horrific crash he reached back and drank heavily from two bottles of booze to numb his pain and emotions.
Prosecutor Angela Ross must prove beyond a reasonable doubt that Kowal was impaired at the time of the crash, shortly before midnight on Sept. 1, 2010, and that he was driving dangerously.
The trial concluded Tuesday with final submissions by the Crown and defence lawyers. Judge Dev Dley reserved his decision until a later date.
About 10 members of the Pippus family attended the trial from Salmon Arm each day. Most were dressed Tuesday in yellow t-shirts — an homage to Donovan being named for the song Call Me Mellow Yellow by recording artist Donovan.
Gill said Kowal did not challenge the admissibility of evidence gained by search warrant, for example, or attempt to have blood evidence taken at Vernon hospital ruled inadmissible, what he called “technicalities.”
“This case is a tragic one,” he said. “At the same time there are relatively straightforward facts. Mr. Kowal has not challenged based on Charter (of Rights and Freedoms) reasons.”
Gill said there were five minutes where Kowal was alone in his truck, time he could have consumed alcohol to reach limits recorded in hospital two hours later. He also noted neither RCMP on scene nor emergency personnel noted smells or signs of impairment in the accident’s aftermath.
But Ross said that’s because Kowal was immobile, wedged in his truck or in an ambulance, for most of the time.
“The accused was drinking on his drive from Drayton Valley home (to Kelowna),” Ross said.
“There’s no air of reality to any speculation he could have consumed alcohol after the crash.”
She said an RCMP photo taken at the scene showed the partly empty bottle of vodka in a box, underneath clothing in the rear part of the extended-cab pickup. Kowal said he could not move his torso as he sat in the truck due to intense pain from a shoulder injury.
Kowal testified he fell asleep, crossing into the other lane and hit Pippus’s car. But Ross said that is not consistent with evidence from witnesses that he was speeding and passing recklessly in the moments beforehand.