R. v. McClorey Date:, 2011 BCPC 270

Citation: R. v. McClorey Date: 20110421 2011 BCPC 0270 File No: 3377-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VIVION McCLOREY EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: J. Horneland Counsel for the Defendant: J. Israels Place of Hearing: Vancouver , B.C. Date of Judgment: April 21, 2011 THE COURT: Introduction [ 1 ] Mr. McClorey is charged with one count of having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug.

This occurred on the 19th of July 2009. Typically, cases charged in this manner fall into two categories. One is what I would call actual impaired driving, namely, the person is actually driving and the allegation is the person was impaired by alcohol or a drug while he/she had care or control of the vehicle. The other is the case where the person has care or control of the vehicle but is not driving, for example, the person was either asleep in the car in a parking lot or pulled off to the side of the road and so forth. The situation in this case falls in the first category. [ 2 ] The allegation is that Mr.

McClorey was actually driving his vehicle during a period of time when his ability to drive a motor vehicle was impaired. In this case, the particulars of the impairment are that it was caused by the consumption of alcohol. [ 3 ] I will give a very brief

summary of the allegations. The

summary will not be exhaustive, however I have considered the evidence I heard. As I told you, I reviewed my notes over the lunch period. Background

[4] The allegations essentially are that on the 19th of July 2009, Mr. McClorey was seen driving down the Lougheed Highway. Itappears that the initial sighting was in Coquitlam. When he was first observed, the civilian witness, Ms. Shrimpton, said she saw himdrinking from a can. She said he was drinking from a red can. She also made observations about his driving. They were stopped at alight. She was in a vehicle in the right-hand lane. She was the passenger; her boyfriend was the driver. She was about a lane's widthaway from Mr. McClorey. What she observed Mr.

McClorey do, in terms of his driving, was: he was driving recklessly, he wasswerving, and he almost ran into the car in front of him when he attempted to stop. [5] Ms. Shrimpton then testified there was a second stop at a light. I believe this was at Gaglardi Way and Lougheed. At this pointshe said he was drinking out of a beer can. She and her boyfriend continued to drive along beside him. Finally, when they reachedBainbridge and Lougheed Highway, she dialled 9-1-1. She was on the phone 20 minutes in total, that was from Bainbridge to where sheturned off. [6] Ms. Shrimpton said she observed Mr.

McClorey driving along Lougheed Highway. He went to Boundary and at Boundary heturned right, that is, he was going north on Boundary. He crossed Hastings Street. Several blocks later he made a U-turn, thenproceeded back to Hastings Street and Boundary, and made a right-hand turn on to Hastings Street. [7] Ms. Shrimpton was asked to describe his driving. She said it was reckless driving. There were lots of swerves between lanes,lots of fast driving, sudden stops, very careless driving. She explained that, for the first portion of distance she followed him, she and herboyfriend were driving beside Mr. McClorey.

However, when he turned right onto Boundary they got behind him and remained behindhim until the car was pulled over by the police. [8] The police actually came on the scene at Commercial Drive and Hastings Street. Ms. Shrimpton testified she was on the callwith the 9-1-1 operator the whole time. I also heard evidence from Constable Lauren that there were dispatches made on the police radioabout the situation. [9] Constable Lauren indicated she first observed Mr. McClorey's car at Commercial Drive and Hastings Street. He went through agreen light. There was nothing untoward about that.

However, she noticed that when the police car pulled in behind him, at one point,he swerved from the number one lane to the number two lane. She said he did not signal, and the wheels on the passenger side wereabout five feet over the dotted line. He then went back into his own lane, the number one lane, which she described as the centre lane. When he made this manoeuvre, that is swerving from lane number one to lane number two, he almost sideswiped a vehicle that was inthe number two lane.

A short time later, he again crossed or swerved from number one lane to number two lane, but he did not go intothe lane as much as he had the first time. Mr. McClorey was pulled over just past Clarke Drive at a point where there is a bend onHastings Street. When he was pulled over, the passenger side wheels mounted the curb and came down again. [10] Constable Lauren said she made no observations about Mr. McClorey having any problems when getting out of his vehicle. Indirect she said that as she approached the driver's side, she smelled the odour of an intoxicating liquor. She asked Mr. McClorey hisname.

He responded coherently. He was then arrested. The indicia she observed were glassy eyes, unsteady on his feet, odour of liquoron his breath as he spoke, and he leaned against the police vehicle. [11] Another officer, Constable Powell arrived on the scene. At the time he arrived, he said Mr. McClorey was behind the whiteYaris and he was in handcuffs. In cross-examination he said Mr. McClorey was standing next to the police cruiser behind the Yaris. Hewas standing, not leaning. Constable Powell's observations, in terms of indicia, were: Mr.

McClorey was very red in the face; bloodshoteyes and had a strong, overpowering smell of liquor on his breath when he talked. He also said Mr. McClorey lost his balance on morethan one occasion. [12] Constable Sood, another officer, said when he first saw Mr. McClorey he was standing behind his own vehicle -- when he said"his" vehicle; I assume that was the Yaris -- in cuffs. The indicia he observed were: glassy, red eyes; a smell of alcohol from his breathwhen he spoke; unsteady gait; and he was pacing around. [13] This

summary of the evidence is essentially from direct examination, although I have also referred to some evidence from cross-examination. I will deal with other cross-examination evidence in the course of my reasons. I have not ignored it. I have simply notdealt with it as part of the introductory background

summary. [14] Mr. McClorey was put in a police wagon and taken to 312 Main Street where he underwent the usual processing that occurswhen a breath sample is taken for analysis using a breathalyzer. Constable Sood was there to observe him for two 17-minuteobservation periods. He gave evidence about what his observations were. After the samples were taken Mr. McClorey was released. Legal Principles [15] I now turn to the authorities and the legal principles that apply to impaired driving cases. Before I do that, I will first refer tosome general legal principles which are trite law.

I will review these principles, not because I think the Crown or the defence needs to bereminded of them, but in order to frame the comments I am going to make later on. [16] The first principle is that an accused person is presumed innocent unless and until he is proven guilty beyond a reasonable doubt. The second principle is that it is not for the accused person to prove his innocence; rather, it is for the Crown to prove his guilt beyond areasonable doubt. There are some situations involving drinking/driving charges where there are certain presumptions.

This is not one ofthose cases. [17] Now, I am going to review the legal principles regarding impaired driving. For the sake of completeness and fairness, this is areview of the law. I am relying on a review of the law from one of my earlier decisions, R. v. Campbell, 2010 BCPC 50 , 2010BCPC 0050. Accordingly, if the words sound familiar it is because they may be. I am not dealing with any factual findings; I amsimply dealing with a review of the case law. I point this out because of a recent case about plagiarism.

I don't know whether quotingfrom one of my own decisions would amount to plagiarism, but out of an abundance of caution I am pointing this out.

[18] In any event, the leading case on the principles to consider when determining whether an accused is guilty of an offence under s.253(

a) of the Criminal Code is the Ontario Court of Appeal decision in R. v. Stellato (1993), (ON CA), 78 C.C.C.(3d) 380. That case has been relied on by the Crown. That decision was upheld by the Supreme Court of Canada, see: R. v. Stellato (SCC), [1994] 2 S.C.R. 478. The appropriate test to be applied was set out as follows at para. 14: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [19] In R. v.

Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392, the Alberta Court of Appeal commented on the Stellatocase as follows at p. 399: Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubt ofslight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is notnecessary that the degree of that impairment be marked.

The courts must not fail to recognize the fine but crucial distinction between "slight impairment" generally, and "slight impairment ofone's ability to operate a motor vehicle". Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one's ability to do brain surgery, or one's ability to thread a needle. The question is not whether theindividual's functional ability is impaired to any degree. The question is whether the person's ability to drive is impaired to any degree byalcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person's functional ability is affected insome respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [20] In the Andrews case, the court set out a useful

summary of the general principles to be applied in impaired driving cases. Thatsummary is as follows: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet. To that extent the degree of deviation from normal conduct is a useful tool in the appro​priate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. The central issue in this case is whether the evidence establishes beyond a reasonable doubt that Mr.

McClorey's ability to operate amotor vehicle was impaired by alcohol. [21] In R. v. Chura, 2006 BCPC 165, Judge Baird Ellan made some comments about impaired driving charges. The facts in that caseare different from the case at bar in that the accused was seen driving erratically by a ticket booth attendant at a B.C. Ferries terminal. He was driving quickly. He was unsteady on his feet as he got out of the vehicle. There was no smell of alcohol detected. The policewere called. They found the accused in his vehicle. He had watery eyes, a slow walk, and a belligerent attitude.

He admitted to thepolice that he had drunk a few beer a few hours before at a nearby pub. The police made a breathalyzer demand, and the readings were80 milligrams and 90 milligrams. [22] The issue before Judge Baird Ellan was whether impaired driving had been proved. She made some observations in her analysiswhich are apposite in this case. I quote from paras. 46: This is a single count of impaired driving. There is no direct evidence of Mr. Chura's blood alcohol level at the time he was found in careand control of his truck, so impaired driving must be established by circumstantial evidence.

The issue is therefore whether the Crownhas established that he had symptoms attributable to alcohol consumption from which the only available reasonable inference is that hewas impaired in the operation of a motor vehicle. She continued at para. 47: I take instruction from the case of R. v. Andrews [I am going to omit the citation], which was followed in B.C. in the case of R. v.Zubrecki, [1999] B.C.J. No. 2110 . . . both cited by Mr. Butler [who was the lawyer in that case]. The Crown need not show a markeddegree of impairment of the ability to drive.

Any degree of impairment will suffice as long as it is related to driving ability and not just tothe accused's physical condition. There must be a further inference on the evidence that driving ability is affected. In relation to thatinference, it would seem clear that the onus remains on the Crown, and that it must be the only reasonable inference based upon thecircumstantial evidence relating to the condition of the accused. [23] In the Chura case, the issues were whether: (

a) the symptoms the accused exhibited were such that he could be said to beimpaired in the operation of his vehicle at the time he was encountered in it by the police officers, and (

b) his explanation of thesymptoms must be rejected. The reason I find this case helpful is that it crystallizes the issue before me. There is no direct evidence ofMr. McClorey's blood-alcohol level at the time the observations were made by Ms. Shrimpton or by the officers. One of the points thatis sometimes forgotten is that in such circumstances we are dealing with circumstantial evidence. Judge Baird Ellan, with her usualjudicial acuity, identified that very point.

[ 24 ] Accordingly, I need to consider what inferences if any can be drawn from the evidence. When drawing inferences a trial judge must do so from the proven facts. She must draw rational conclusions based on the evidence. A trial judge is not entitled to engage in speculation or conjecture. Alternative inferences suggested by counsel without supporting evidence will not necessarily be persuasive and may be dismissed as speculation. [ 25 ] Let me now deal with the facts before me. The first question I ask myself is - what evidence is there about Mr. McClorey's ability to drive.

That evidence falls into two categories. There is the evidence of Ms. Shrimpton and there is the evidence of Constable Lauren. There is no other evidence, other than Mr. McClorey's evidence, about his ability to drive. I should have said three categories - there is Mr. McClorey's evidence. [ 26 ] Let me start with Mr. McClorey's evidence. The reason I start with his evidence is because I have to make findings of credibility. The well-known case of R. v. W.(D.) states that in making findings of credibility, a judge should address three questions.

The first is - do I believe the evidence of the accused about the sequence of events. If I do, I must acquit. However, even if I do not believe the accused, I must go to a second question, that is - does the accused's evidence, even though not believed, raise a reasonable doubt? The third question is - even if I do not believe the accused and even if his evidence does not raise a reasonable doubt, has the Crown proven its case beyond a reasonable doubt? [ 27 ] Mr. McClorey testified in direct and cross about what he did that weekend. The most relevant testimony he gave was about his driving. Mr.

McClorey readily admitted that: his driving was aggressive, he was impatient, following too closely, and moving from side-to-side in his lane to see if he could get a chance to move ahead. [ 28 ] Mr. McClorey also readily admitted that he drank liquor. He admitted having one beer in Seattle at about 11 a.m. or so, and then having two coolers, one somewhere between Surrey and Coquitlam and the other once he left Planet Ice or shortly after he left Planet Ice. I am not sure at what time that would have been because it was not clear when he stopped drinking. The second cooler was the drink Ms.

Shrimpton no doubt saw him drinking on the two occasions while on Lougheed Highway. [ 29 ] Mr. McClorey explained he was in a rush. He was trying to get to West Georgia Street to drop off his rental car so that he did not have to pay the extra cost associated with keeping the car beyond the rental deadline. He said he did not feel impaired. He felt he was in control. He did not feel the symptoms of impairment. He did not agree with some of the observations made by the police about what happened once he was stopped, and he explained why. He was questioned by Constable Sood.

He gave answers that appeared to be inconsistent. He gave an explanation about what he understood by the questions. [ 30 ] In applying R. v. W.(D.) , I must decide whether I believe Mr. McClorey. My conclusion is that I do not believe him. I do not accept his story one hundred percent. Why do I not believe him? Well, it has to do with reliability. This happened a few years ago. I take the point Mr. Israels made that this has only happened to Mr. McClorey once and he remembers it because it was a memorable event.

However, even if it was a memorable event, memories fade if there are no notes and if there are no other steps taken to record what happened. As noted, I am concerned about reliability. [ 31 ] The other reason I question his reliability is because Mr. McClorey tended to minimize certain things and maximize others. In particular, I found it difficult to accept his explanation about why he answered the questions about drinking the way he did. Mr. McClorey would have me believe that the drinks he had that day did not affect him. I am not referring to his ability to drive. I have not gotten to that point yet.

I find his suggestion, that he was not affected at all by what he drank difficult to believe. I cannot gauge the degree to which he may have been affected. However, I cannot accept his bald statement that he was not affected at all as being reliable. [ 32 ] There are other reasons why I do not find his evidence reliable and why I have not accepted his explanation. However, I am not going to review them in these reasons because I need to now address questions two and three in the R. v. W.(D.) analysis. [ 33 ] Having concluded that I do not believe Mr.

McClorey's explanation one hundred percent, I still have to consider step two, which is - does his explanation raise a reasonable doubt? After that there is step three - even if his evidence does not raise a reasonable doubt, has the Crown proven its case beyond a reasonable doubt? [ 34 ] This is one of those cases where I am probably going to conflate steps two and three of the analysis. That is because I am left in a reasonable doubt at the end of the day.

I will explain how I arrived at that conclusion. [ 35 ] In part, I am left in a reasonable doubt because of the evidence given by the accused, even though I did not accept it in its totality. More importantly, I am left in a reasonable doubt because of other evidence and the evidence about his driving ability. I will start with that. Ultimately, what I have to decide is not whether he was drunk or sober or whether the drinks affected him at all, but whether his ability to drive was impaired. [ 36 ] Let me turn to the evidence of Ms. Shrimpton, which is probably the most important evidence.

As I said earlier, during the course of counsel's argument, I accept and am convinced that Ms. Shrimpton was doing her best to tell the truth. However, I have concerns about the reliability of her evidence. Let me point out what those concerns are. [ 37 ] First, she did not make a statement to police until some months after the incident. I acknowledge that she was talking to the 9-1-1 operator as events unfolded. However, there was no evidence about whether she had refreshed her memory from the 9-1-1 call or even whether the recording had been ordered and transcribed.

She said she made her statement two weeks to a month later. [ 38 ] Second, but more important, is the fact there were errors which were significant. There were two errors I noted, or I should say lack of recollection on two points. The first related to what she observed. Ms. Shrimpton kept referring to the fact that Mr. McClorey was drinking and that he was drinking beer. She said it was a can that was similar to Budweiser. However, she acknowledged that, in her statement, she referred to a bottle, not once but three times. What was most troubling about that evidence was not that Ms.

Shrimpton had made an error but that she said she knew it was a can and somehow put down bottle. She could not explain why. There is a big difference between a can and a bottle. If two weeks or three weeks or four weeks after the event she confused a can with a bottle, that raises concerns.

[ 39 ] The other point, which is less significant but which also raised questions about her reliability, is that Ms. Shrimpton said she never lost sight of the vehicle. She said she followed the vehicle until it was intercepted by police. Based on other testimony, that turned out not to be the case. Constable Lauren testified she heard over the radio that the complainant had stopped following the vehicle at the point the car was at Nanaimo Street and Hastings Street. It was not at Clarke and Hastings as Ms. Shrimpton testified. Ms.

Shrimpton may have met up with the police there but I don't recall the specific evidence in that regard. [ 40 ] The factors go to the reliability of Ms. Shrimpton's recollection. However, the most important reason why I am left in a reasonable doubt about the manner of driving is that her evidence is not sufficiently detailed to allow me to determine whether her observations are accurate. She used conclusory language. I am not faulting her for that. We all use conclusory language as a shorthand.

However, when it comes to proving whether that conclusory language accurately describes a situation, there ought to be detail. [ 41 ] Ms. Shrimpton's evidence was that Mr. McClorey was driving recklessly and that he was swerving. When she was asked to describe his driving, she said that: he was driving recklessly, there was a lot of swerving between lanes, a lot of fast driving, sudden stops, very careless. So according to Ms. Shrimpton there was careless and reckless driving. [ 42 ] Let's consider the fast driving. As to speed, it was established quite clearly that she and her boyfriend were keeping pace. Ms.

Shrimpton said they did not exceed the speed limit when they were driving. She thought the speed limit was between 70 km and 80 km. They were driving, at least during the stretch of Lougheed Highway between Coquitlam and Vancouver, beside Mr. McClorey. What can I draw from that evidence? Well, either she was wrong and they were speeding too, or Mr. McClorey was not speeding. I appreciate that Ms. Shrimpton used the word "fast" and not "speeding", but driving fast, if it is within the speed limit, is not an offence. One detail Ms. Shrimpton remembered was that Mr.

McClorey apparently almost hit another car at one of the stop lights, but she agreed he managed to stop. [ 43 ] Ms. Shrimpton also said there was a lot of swerving between lanes. She used the word "lot" several times but did not quantify how often. Was that once? Was that twice? Was that 10 times? Was that 15 times? It was not in any way quantified. There were no examples given about what she meant by the term swerving between lanes. This is where the absence of detail in Ms. Shrimpton's evidence and the evidence of Mr.

McClorey intersect to raise a reasonable doubt in my mind. [ 44 ] Another point I noted was that, although she testified about braking at one of the lights, slamming on the brakes, and repeatedly driving fast and stopping, neither of those points were in her statement to the police. This raises questions about the reliability of her evidence. I appreciate the fact that Ms. Shrimpton was obviously perturbed by what she saw. Ultimately, however, I have to reach a conclusion about whether the driving was so reckless and so careless that the inference can be drawn it was due to alcohol.

On the description given by Ms. Shrimpton, I am not comfortable drawing that inference. [ 45 ] I next turn to the account of the driving by Constable Lauren. What Constable Lauren saw was that Mr. McClorey went through the green light which was fine. She observed two instances of swerving. She described one instance where he nearly sideswiped a vehicle. From the way she described it, this happened a matter of minutes after she pulled in behind him. She said it was immediately after she got behind him. This, in my view, hardly shows a pattern of driving.

She also said there were two instances where he went over the line from one lane to the other. One was more serious, that is, when he nearly sideswiped a vehicle. Constable Lauren commented, however, that when the emergency lights were activated, he pulled over immediately. She did not observe Mr. McClorey having any problem getting out of the car. I do not consider whether he signalled or not as a significant indicia of impairment.

If that were the case, three-quarters of the drivers in Vancouver would be pulled over. [ 46 ] The next point I will address is the indicia noted by Constables Lauren, Powell, and Sood. At the end of the day, I have to decide whether those indicia are sufficient to constitute impairment. What has caused me concern and has raised a reasonable doubt is that it appeared the officers were going through the indicia by rote.

Although I do not believe this is what they meant to do, that is how it came across when they were cross-examined. [ 47 ] I have considered the indicia observed as a whole, although I have commented on them separately. I appreciate that all indicia of impairment need not be established to result in a conviction. However, where there are significant differences between witnesses as to what indicia were observed or discrepancies in the evidence of an individual witness that raises concerns. For instance, let's deal with Constable Powell's observations.

Being very red in the face could be a significant indicia of impairment. However, it was not written in his notes, and Constable Sood did not note that indicia. It was also not observed by Constable Lauren, or if she did, it was not in her notes. [ 48 ] Mr. McClorey's eyes were described by Constable Lauren as glassy eyes, by Constable Powell as bloodshot eyes - this was not in his notes, by Constable Sood as glassy, red eyes but his notes said "bloodshot".

I realize that police officers are not necessarily trained in the finer points of the English language or in parsing, but the difference in descriptions is somewhat troubling. [ 49 ] One of the major points Constable Lauren made was that Mr. McClorey was leaning against the police vehicle. She said that was done to maintain his balance, or words to that effect. That was a conclusory statement. All she said was: he was leaning and it was to maintain balance. She did not explain why she reached that conclusion or how long he was leaning.

This point was not in her notes and I do not believe it was in her report to Crown counsel either. Constable Lauren also said she spent half an hour with Mr. McClorey. He had no trouble understanding her; he had no flushed face; and his pupils were not dilated. [ 50 ] In

summary, we have evidence from officers who are trained to make observations but their observations are quite different. I appreciate that the degree of impairment need not be marked. However, when the court is asked to rely on police observations to determine whether there was impairment, if there are differences between the officers' observations, that raises concerns about the reliability of their observations. [ 51 ] The other observation was about the odour of liquor. Constable Powell said there was a strong, overpowering smell of liquor on Mr. McClorey's breath when he talked.

However, there was no note of that observation in his handwritten notes. His report to Crown counsel said the odour was on his person. Constable Powell was asked: "Well, how could you say it was on his breath when nothing was spoken until a later point in time?" I do not now recall the entire exchange during cross-examination. However, it became clear that

it would be impossible to smell liquor on the breath if the person was not talking and if the officer was not close to the person as the person was breathing. [ 52 ] Constable Sood said there was a smell of alcohol on the breath when Mr. McClorey spoke. However Constable Sood's notes just recorded "odour of liquor." The notes did not indicate whether the odour was coming from the breath or body. [ 53 ] I am not going to go on with other examples because of the time. I have concerns about the observations made by the witnesses and the inferences I can properly draw from them.

My main concern, to go back to the point at which I started, is that even if I accept the indicia noted by the officers, even if I accept that those indicia were sufficient to indicate impairment, the question remains - was there impairment of Mr. McClorey's ability to drive? Having dismissed the evidence of Ms. Shrimpton, for the reasons set out earlier, I am not satisfied on the remaining evidence that the Crown has established impairment of the ability to drive. Accordingly, I am left in a reasonable doubt and acquit Mr. McClorey. (REASONS CONCLUDED)