R. v. Stewart Date:, 2015 BCPC 240

Citation: R. v. Stewart Date: 20150720 2015 BCPC 0240 File No: 36179-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LALAWNIE MATASHA STEWART ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G. Merke Counsel for the Defendant: A. King, Q.C. Place of Hearing: Port Alberni , B.C. Dates of Hearing: April 14, June 10 and July 20, 2015 Date of Judgment: July 20, 2015

THE COURT (Orally): INTRODUCTION [ 1 ] Lalawnie Matasha Stewart is charged with the offence of having the care and control of a motor vehicle while her ability to operate the motor vehicle was impaired by drug or alcohol, on June 8, 2014, at or near Tofino in the Province of British Columbia, contrary to s. 253(1) of the Criminal Code . She also faces a charge of having a concentration of alcohol in her blood exceeding 80 mg of alcohol in 100 mL of blood when having the care and control of a motor vehicle; that is contrary to s. 253(1)(

b) of the Criminal Code . [ 2 ] With respect to the count 2 offence, that is the over .08, it is conceded by Crown that they have not adduced sufficient evidence in order to obtain a conviction with respect to count 2. Accordingly, I will acquit Ms. Stewart with respect to that offence. [ 3 ] That leaves before the court the impaired driving charge. In support of its case, Crown has called a civilian witness who initially observed Ms.

Stewart driving and reported her concerns to the RCMP, whose members thereafter attended to a parking lot at Combers Beach near Tofino, British Columbia, in what is sometimes referred to as the Long Beach area. In addition, one attending police officer testified with respect to his interaction with Ms. Stewart and provided evidence with respect to what was believed to be a condition of impairment and behaviour consistent with someone whose abilities had been impaired by alcohol. [ 4 ] In support of her case, Ms. Stewart, hereinafter referred to as the "Accused", testified on her own behalf.

She was the sole defence witness. [ 5 ] As the trier of fact on this charge, I must determine whether I am satisfied on the whole of the evidence the Crown has established beyond a reasonable doubt that the Accused's ability to drive was impaired by alcohol or drug at the time she was observed driving her motor vehicle and subsequently found in control of it while stopped in the parking lot.

Summary of Evidence The Crown's Case Evidence of Deana Cole [ 6 ] Deana Cole was the Crown's civilian witness. She is a 23-year-old paramedic who has just over one year's experience as a paramedic as at the date of this offence having occurred. [ 7 ] She was driving her motor vehicle on the highway which runs northerly from Ucluelet to Tofino. She was able to observe a black Jeep motor vehicle in front of her. She made certain observations about that particular vehicle which caused her concern and resulted in her reporting her observations to the RCMP. [ 8 ] It was Ms.

Cole's evidence that she had observed the vehicle which eventually turned out to be driven by the Accused for a period of between 15 to 20 minutes. The motor vehicle that she was observing was crossing over the right side markings along the travelled portion of the roadway, by some two to three feet, and then crossing back over the centre line some two to three feet, on a continuing basis as the vehicle proceeded up the highway. [ 9 ] Ms. Cole was alarmed at the driving behaviour.

Accordingly she dropped back such that she was able to continue to observe this pattern of driving but remained a safe distance behind. She described the driving pattern as "erratic".

She could not specify the exact number of times that the vehicle continued to move from side to side over each of the two sets of lines but indicated that this continued on a constant basis throughout the period of observation. [ 10 ] She observed the colour of the vehicle and the make of the vehicle, but was uncertain as to the actual licence number. [ 11 ] The vehicle turned off suddenly by making a left-hand turn at Combers Beach. Ms. Cole described this as a very sudden veering off to the left into the parking lot. There was no general braking or gradual braking, and there was no turn signal.

The vehicle simply made an abrupt turn to the left-hand side while Ms. Cole continued driving up the highway. She did not have the licence number and accordingly felt it necessary to retrace her steps. It took her approximately five minutes to return to the parking lot at Combers Beach. At that point, she observed the vehicle she had followed nose down in a deep ditch at the back of the parking lot. [ 12 ] The occupant who was driving that vehicle was still seated in the vehicle. Ms.

Cole indicated that the motor vehicle's engine was still running, notwithstanding that the vehicle was nose down in the adjacent ditch area. She called the 9-1-1 dispatcher and, while doing so, read to them the licence number of the motor vehicle. [ 13 ] The driver of the vehicle, which as it turned out is the Accused, was asked by Ms. Cole if she was all right. There was nobody else in the vehicle at that time other than a small dog, later identified as a pug. [ 14 ] In response to the questions posed by Ms.

Cole as to the condition of the Accused, the Accused responded by indicating that she was just fine and that she had a ride coming. [ 15 ] At that point, the Accused began to alight from the motor vehicle. This permitted Ms. Cole to make several observations. Her first observation was that there was a very strong smell of alcohol. It was emanating both from the vehicle and, as the Accused alighted from the vehicle, was coming off of the person of the Accused. Ms. Cole also observed that the Accused was very unsteady on her feet. Ms. Cole was making her observations approximately two feet away from the Accused.

Ms. Cole noted that as the Accused moved from the vehicle she was staggering and that her steps were very unbalanced, and that she was not able to walk in a straight line. [ 16 ] While Ms. Cole was attempting to place her call to 9-1-1, the dog, which had been occupying the vehicle with the Accused,

came out of the vehicle. Ms. Cole was able to restrain the dog by holding onto its collar to prevent it from leaving the vicinity of the vehicle and moving towards the highway area. The Accused asked Ms. Cole not to touch the dog and requested that she release the dog, notwithstanding the possible danger to the dog. Upon release, the dog ran towards the highway. The Accused appeared to be unaware that the dog was heading to the highway and that fact was drawn to her attention by Ms. Cole.

The Accused proceeded in an unsteady fashion towards the highway, where she entered into the highway in order to try to retrieve the dog. In Ms. Cole's observation, the Accused seemed to be unaware of the potential risk that she was placing herself at by entering into the highway area for this purposes of attempting to retrieve the dog. [ 17 ] The Accused was able to retrieve the dog. Again Ms. Cole observed the unsteady progress being made by the Accused as she headed back towards the motor vehicle. Ms. Cole suggested to the Accused that she place the dog on a leash. Ms.

Cole also indicated to the Accused that she had contacted the police and that they had been dispatched for arrival at the scene. [ 18 ] In response to the questions asked by Ms. Cole of the Accused, the Accused responded in a timely and appropriate fashion. She claimed that she was not injured. She requested that Ms. Cole not contact the police and continued to make suggestions that there was somebody who would be arriving to provide her with a ride. [ 19 ] Ms. Cole was unable to remain at the scene of the accident owing to an appointment that she had to make in Tofino.

Accordingly, she left the scene at the parking lot. As she was proceeding towards Tofino, she passed the police car which was heading towards the area from which Ms. Cole had departed. [ 20 ] These events both in terms of the observation of the driving and the events that took place in the parking lot, all occurred between approximately 6:50 p.m. and 7:15 p.m. [ 21 ] It is noteworthy that, in compliance with the suggestion made by Ms. Cole to her about turning off the engine, which was still running, the Accused did in fact turn the engine off.

Evidence of Constable Squire [ 22 ] Constable Squire was the police officer who had been dispatched to the Combers Beach parking lot. He is with the Ucluelet detachment of the RCMP and has been for a period of some three-and-a-half years. His experience during that period of time has been dealing with intoxicated individuals on a weekly basis. He stated in his evidence that, during the summer months, on some occasions, he deals with over 50 intoxicated individuals each night.

He has experience in investigating impaired driving cases and further indicated in his evidence that he has investigated 10 to 15 such cases. As I understand it, he is also qualified as a breathalyzer technician. [ 23 ] According to his evidence he was dispatched at approximately 6:50 p.m. and proceeded to the site of the parking lot. It took him approximately 15 minutes to drive to the scene. He arrived at the parking lot at approximately 7:14 p.m. [ 24 ] He observed the motor vehicle that had been described to him in the dispatch. It was parked nose down as had been observed by Ms. Cole.

The licence plate that had been provided to him was evident on that vehicle. He observed that there was nobody around the vehicle. He found the vehicle unlocked. There were no keys in the ignition. He conducted a search in the surrounding area and located a black purse in the grass area approximately two metres away from the vehicle. He took the purse into his possession and for safekeeping placed it in his vehicle. [ 25 ] Constable Squire observed a group of individuals at the far end of the parking lot area several metres away. He drove down to speak to those individuals.

They turned out to be what he believed to be German tourists. He was able to converse in a rudimentary fashion with them. He learned that the individual believed to be the driver of that vehicle had proceeded down the trail towards the beach area. [ 26 ] Constable Squire proceeded down that trail, which he says runs a distance of approximately a kilometre. He was about halfway down the trail when he heard what he described as crashing in the bush area to his right. [ 27 ] He observed an individual; it turned out to be the Accused. She was approximately 10 to 15 feet off the trail.

She was wearing clothes that seemed to fit the description that he had received from his dispatch and also from the people whom he believed to be the German tourists. [ 28 ] He stated to the Accused words to the effect, "Police, I would like to speak to you". The response from the Accused was words to the effect of "no". At that point, it appeared that the Accused had been crouching down in the bush area. She stood up and started to walk, not towards Constable Squire but rather deeper into the woods.

Constable Squire also observed there was a dog which appeared to be off to the left, on a leash. [ 29 ] Constable Squire proceeded to follow the Accused. At that point, he again told her to stop and he identified himself as a police officer. That would have been evident from the fact that he was in full uniform at that time.

He followed her along the path that she was creating through the bush; as he was able to approach her, he became aware of a very strong odour of stale liquor. [ 30 ] In addition to the strong odour of alcohol emanating from the Accused, Constable Squire made the observations that that she had fallen down a few times and also seemed to be having trouble staying on her feet. She was moving in a fashion which made it evident to him that she was attempting to get away from him.

The dog was in the same vicinity, some 20 to 25 feet away from the Accused. [ 31 ] Having observed the inability of the Accused to remain standing, and having observed the falls that she had suffered, and given the strong odour of alcohol that he was able to detect, Constable Squire formed reasonable grounds for his suspicion that the Accused was impaired. Accordingly, he told her that she was under arrest for impaired driving.

In response to that, the Accused made a spontaneous utterance to Constable Squire with words to the effect, "You can't prove that." She made that statement as she continued to walk away from Constable Squire.

[ 32 ] Constable Squire testified that, notwithstanding the fairly thick foliage coverage, he was having no problem staying on his feet as he pursued after the Accused. [ 33 ] As Constable Squire continued to pursue the Accused, she fell forward onto her front. He was apparently standing over her when she pulled her hands underneath her body. She was lying face down, with both hands under her chest. Constable Squire requested that she show him her hands. She refused to do so.

Accordingly he was obliged to grab her right hand and pull it out behind her back, and then he requested she show him her left hand, and again she refused to do so, requiring him to pull her left hand back and to place her into handcuffs. [ 34 ] At that point, he Chartered and warned her and again indicated the reason for the arrest, that is for impaired driving. He informed her of her right to talk to a lawyer and by way of the police warning indicated that she did not have to talk to him.

All of this occurred at approximately 7:30 p.m. [ 35 ] Constable Squire requested the Accused to stand up and to walk out with him. At that point, the Accused became verbally abusive towards Constable Squire, saying words to him to the effect that he was "a rookie cop" and, further, that he "didn't know what he was doing". She also started to use profane language which was also directed at Constable Squire. [ 36 ] Constable Squire told her that she had two options. One was to stand up and walk out or, alternatively, he would be required to drag her out. The Accused remained non-compliant with that request.

Therefore Constable Squire started to drag her out. [ 37 ] Another police officer, namely Constable Hartwig, arrived at the scene. He started to provide some assistance to Constable Squire in order to move the Accused from the bush area and back towards the path.

At that point the Accused became more compliant and started to walk on her own, but was still being held by Constable Squire as he moved her towards the pathway area. [ 38 ] Constable Squire eventually took the Accused to the detachment, where periods of observation were conducted and demands made and, as I understand it, breath samples provided by the Accused. Those results are not before me. [ 39 ] In cross-examination, Constable Squire was asked questions concerning his observations of the Accused.

He did confirm that once she was provided with instructions and information, including the Charter warnings and the police warning, she appeared to understand those instructions. He did not have to repeat them to her. She also indicated to him in her answer to his question that she wished to speak to a lawyer. [ 40 ] He also confirmed that once he had moved the Accused back onto the trail, that she was able to walk, albeit slowly, back towards his police cruiser.

He also confirmed that once on the trail that she was compliant with the further instructions and was timely and responsive to further questions posed and directions given to her. In cross-examination, Constable Squire confirmed that once the Accused was back at his police cruiser, he again provided formal warnings and Chartered the Accused from a written card in his possession.

Again his observation was that she appeared to understand all of these instructions and those warnings that were given to her. [ 41 ] The balance of the evening was spent for the most part by Constable Squire in the presence of the Accused; she was apparently released, I understand, by another police officer early in the morning of June 9, 2014. Defence's Case Evidence of the Accused [ 42 ] The Accused testified on her own behalf. [ 43 ] At the time of the events giving rise to the charges, I understand that she was approximately 40 years of age. She has a teenage son.

She is a single parent who lives in the Nanaimo area and apparently works at two jobs. [ 44 ] In her evidence, the Accused indicated that the 8th of June 2014 was the conclusion of a weekend spent camping on the West Coast with a former partner. She and her former partner had travelled in separate vehicles up to a camping site near a set of waterfalls but off of a logging road which was adjacent to the main road between Tofino and Ucluelet. The distance up the logging road was approximately 40 minutes from the main road. [ 45 ] She travelled there in her Jeep vehicle.

That Jeep vehicle was purchased by her, new, in the year 2011. [ 46 ] She indicated that she and her former partner had arrived on the Friday evening at the area which they had selected as their campsite. They spent approximately two-and-a-half days camping, during which time they consumed alcohol. Initially in her testimony, the Accused indicated that she could not recall how much she had consumed on June 8, 2014.

She did, however, at later points in her testimony, provide more precise estimates of how much she had consumed and what type of liquor was consumed. [ 47 ] She did confirm that early in the morning of June 8, 2014, as I understand it, that she had consumed approximately a quarter of a bottle of what is described as "fireball whiskey". She also indicated that subsequent to that, she had consumed her two remaining ciders. Her estimate of the amount of fireball whiskey consumed was "maybe four ounces".

At a later point in her testimony, she indicated that the fireball whiskey was a large bottle and that her estimate was that she had consumed approximately a quarter of it. [ 48 ] According to her testimony, as it unfolded, she also admitted to having consumed at least one beer; again the timing of the consumption of the beer and the cider was placed by the Accused as being sometime around noon or the early afternoon. She denied having any alcohol to drink while she was driving her vehicle away from the campsite, back towards the main roadway.

[49] In her evidence, the Accused stated that her vehicle was a somewhat short-based vehicle. She indicated although the car wasrelatively new, being approximately only three years old at the time of this event, that the steering on the vehicle was somewhatunresponsive. She indicated that she had had a continuing problem with the tire pressure in the vehicle's tires and further indicated thatone of the front tires often deflated. She also indicated that, as she was driving the vehicle, it was not uncommon for the vehicle to pullto the right.

She provided some evidence as to the problems that she encountered from time to time with the antilock braking device onthe vehicle. [50] She testified that, while she was driving both down from the campsite towards the highway and then again on the highway, thather pet 11-year old pug dog was in the vehicle with her. She testified that the dog was attempting to climb between the seats and tooccupy a position in her lap. [51] She denied that she was driving in a fashion that was described by the independent witness Ms.

Cole. [52] She indicated that her reason for making the abrupt left hand turn into the parking lot at Combers Beach was due to an urgentneed to urinate.

She indicated that her vehicle ended up going over the edge of the parking lot into the adjacent ditch as a result of thefact that she had not quite fully turned off the ignition when she released the clutch, thereby causing the vehicle to jump into the ditcharea in front of her at the rear of the parking lot. [53] She indicated that she was of the view that, even using the four-wheel drive capabilities of the vehicle, she would be unable toextract her vehicle out of the ditch area. [54] In cross-examination she spoke in terms of her interaction with Deana Cole.

She was unable to provide any exacting details ofthat interaction. She made the suggestion that Ms. Cole was somewhat aggressive with her when she was speaking to her about herdriving. She indicated that she did not recall telling Ms. Cole not to call the police. [55] She had poor recollection of the events surrounding the dog getting loose and the discussions she may have had with Ms. Cole,instructing Ms. Cole to release the dog. She did recall running after the dog. She conceded that after her interaction with Ms.

Cole, andso far as I was able to determine from her evidence, her first attempts at urinating occurred when she had proceeded down the trailtowards the beach. [56] She was unable to recall whether or not she had cell service and was able to try to make contact with her former partner toinform him of the accident or the fact that her vehicle was now in the ditch, according to her, caused by her failure to turn the vehicle offand release the clutch in a proper fashion. [57] She indicated that she started to walk towards the far end of the parking lot and down the trail because she was of the view thatthere was a facility that she could use for urination purposes.

She also conceded in cross-examination that because her vehicle was in theditch, and given the fact that Ms. Cole was in the process of calling the police and that they were apparently on their way, in her words it"didn't look too good". [58] She denied that she was attempting to hide from Constable Squire by squatting down in the bush, rather indicating that she wasin the process of urinating and was not attempting to avoid detection. She did not have any explanation as to why she made the commentabout Constable Squire being a "rookie cop" or some of the other abusive comments that she hurled at him.

She denies that she wasuncooperative in terms of complying with Constable Squire's requirement that she stand and walk out thus requiring him to drag her out. [59] She indicated that she did make a statement to Constable Squire when he told her that she was being arrested for impaireddriving to the effect that "you cannot prove it". She also concedes she did not offer any explanation to Constable Squire as to why hervehicle was in the ditch or offer any explanation to him, as to any of her other behaviour, including the fact that she was squatting in thewoods for the purposes of urinating.

The Applicable Law Basic Principles Presumption of Innocence and Reasonable Doubt [60] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and it never shifts to the accused person. [61] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty since that would be animpossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 , [2000] 2S.C.R. 144).

Credibility and W.(D.) [62] In this case, I have heard evidence that is conflicting on material matters. Therefore I must assess the credibility of thewitnesses who provide this conflicting evidence. In doing so, I must weigh all of the evidence. In so weighing the evidence, I may rejector accept some or all of a witness's testimony after having taken into account a multitude of factors which include, but are not limited to,

appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency. [63] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [64] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v. Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J.

No. 1094.) [65] In cases such as the present case where the Accused has testified, the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, set out a proposed model for a trial judge to instruct a jury or present to them self, if there is no jury. Atparagraph 28, the Supreme Court stated as follows: First, if you believe the evidence of the Accused, obviously you must acquit. Second, if you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the Accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [66] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the Accused must be acquitted.

Josiah Wood J.A. (as he then was) suggests thatlogically this ought to be second in order in the W.(D.) analysis. [67] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation, to be used at all times orto achieve a level of sanctity or immutable perfection. I must further instruct myself of the main point that the burden never shifts fromthe Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the Accused does notequate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), (2008) 2008 SCC 30 , 2 S.C.R. 152.) Case Authorities Relied Upon by the Crown [68] The Crown has referred the court to and relies upon the following additional authorities: R. v. Miller, [1999] B.C.J. No. 406, adecision of the British Columbia Supreme Court and R. v. Todd, 2007 BCCA 176, [2007] B.C.J. No. 892, a decision of the BritishColumbia Court of Appeal. [69] In Miller, the court was dealing with an appeal by the Accused Miller from an impaired driving conviction. At paragraph 16,Mr.

Justice Melnick set out a review of some of the applicable case authorities, and I quote as follows: [16] Furthermore, the basic principles applicable to establishing a conviction under s. 253(

a) as set out in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.) and R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta.C.A.) do not, in my view, advance the appellant's position. Specifically, I refer to the following excerpt from Andrews 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 degreeby alcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person's functional ability isaffected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [17] At pp. 399-400, Madam Justice Conrad continues: Stellato, admittedly, is not entirely clear on this distinction.

The inference that Stellato will sustain a conviction if the impairment provedis slight, rather than if the impairment of the ability to drive is slight, stems from the penultimate paragraph of Labrosse J.A.'s judgmentwhere he says [at p. 384]: Accordingly, before convicting an Accused of impaired driving, the trial judge must be satisfied that the Accused's ability to operate amotor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonabledoubt as to impairment, the Accused must be acquitted.

If the evidence of impairment establishes any degree of impairment rangingfrom slight to great, the offence has been made out. (Emphasis added.) In my view, that paragraph must be read in the context of the whole judgment and, in particular, the sentence commencing "...Accordingly ...". I am satisfied that the subsequent references to the word "impairment" in the paragraph really mean "that impairment"referring to the earlier described impairment of the ability to drive. Otherwise, the pronouncement is not in harmony with the reasons ofMitchell J.A. in R. v.

Campbell (1991), (PE SCAD), 26 M.V.R. (2d) 319, 87 Nfld. & P.E.I.R. 269, 12 W.C.B. (2d)155, quoted with approval by His Lordship which I set out for convenience [at p. 320]:

The Criminal Code does not prescribe any special test for determining impairment. It as an issue of fact which the trial Judge mustdecide on the evidence. The standard of proof is neither more nor less than that required for any other element of a criminal offence. Before he can convict, a trial Judge must receive sufficient evidence to satisfy himself beyond a reasonable doubt that the Accused'sability to operate a motor vehicle was impaired by alcohol. It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive.

However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired. Courts must therefore take care when determining the issue not to apply tests whichassume or imply a tolerance that does not exist in law. Trial judges constantly have to keep in mind that it is an offence to operate amotor vehicle while the ability to do so is impaired by alcohol.

If there is sufficient evidence before the Court to prove that theAccused's ability to drive was even slightly impaired by alcohol, the Judge must find him guilty. [Emphasis added.] [70] In Todd, the Court of Appeal was dealing with an appeal from the appellant Todd of a decision where in his retrial on charges ofimpaired driving and care and control of a motor vehicle with a blood alcohol level exceeding the legal limits, the appeal judgeconcluded that the original trial judge erred in considering the indicia of impairment individually rather than collectively and byspeculating on possible other reasons for impairment other than alcohol.

The appeal judge had ordered a new trial. [71] Our Court of Appeal dismissed that appeal before them. The Court of Appeal held that the trial judge's analysis of the separateaddition of impairment was an error of law and speculating on an unstated defence. In reasons for judgment, Mr. Justice Chiasson statedas follows: [13] The appeal judge stated "[i]t is trite law that a trial judge is required to consider all of the evidence together and in conjunction withall of the other evidence in the case to determine whether the offence has been made out. Failure to do so is an error of law".

He quotedfrom the decision of the Nova Scotia Court of Appeal in R. v. Andrea, 2004 NSCA 130: [19] As to the objective components, I am satisfied that the appeal court judge erred in assessing the various indicia on which theconstable formed his belief in isolation, rejecting each on the grounds of consistency with other explanations. The indicia must beevaluated in total: see R. v. Huddle, 1989 ABCA 318 , [1989] A.J. No. 1061 (Alta. C.A.).

Specifically the appeal court judgereviewed the respondent's submissions that each of these indicia were equivocal or consistent with the behaviour of a driver who was notimpaired. Although acknowledging that the circumstances must be taken together, in effect he weighed them separately, and concludedthat the totality of the evidence did not overcome the equivocal nature of the parts. The appeal judge also referred to comment to like effect by Hall J.A. in this Court in R. v.

McPherson, 2000 BCCA 542. [14] A pithy statement of the proposition is found in the penultimate paragraph of the decision of the Alberta Court of Appeal in R. v.Huddle, 1989 ABCA 318 , [1989] A.J. No. 1061 (C.A.): In our view, it is an error in law to test individual pieces of evidence which are offered to establish the existence of reasonable andprobable grounds. That is similar to the approach which the Supreme Court of Canada condemned in R. v. Morin, (SCC),[1988] 2 S.C.R. 345, 66 C.R. (3d) 1, 88 N.R. 161, 30 O.A.C. 81, 44 C.C.C. (3d) 193.

True, the smell of alcohol does not showimpairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but the question iswhether the total of the evidence offered provided reasonable and proper grounds, on an objective standard. We say that because noissue of subjective belief arises here. [72] Crown indicates that those are the appropriate tests that I should be applying. I do not understand defence to be taking acontrary view. I am of the view that these are an applicable and proper statement of the law that is to be applied to the facts before me.

Crown Submissions [73] Crown submits that it has adduced sufficient evidence to prove each of the essential elements of the offence and, specifically,that it is proven that the Accused had the care or control of a motor vehicle while the Accused's ability to operate the motor vehicle wasimpaired by alcohol. [74] In doing so, considerable reliance, of course, is placed on the evidence of the two Crown witnesses. The observations made bythe witness Cole, specifically of the driving and then of the behaviour of the Accused once approached by Ms.

Cole in the parking lot,with the vehicle nose down in the ditch, in Crown's submission should be accepted to prove not only the impaired driving but it alsoprovides strong evidence of significant impairment by alcohol of the abilities of the Accused during the period that she was observeddriving. [75] As an independent witness, the suggestion is that there is no reason for Ms. Cole to fabricate or to exaggerate her evidence andthat on the whole, her evidence was entirely consistent and uncontradicted.

Accordingly, considerable weight should be placed on thatevidence. [76] Similarly, Crown says that with respect to Police Constable Squire, he was on the scene in a relatively short time span after theobservations had been made by the witness Cole. Constable Squire was able to detect the same apparent high level of alcohol on theAccused that had been detected and observed by the witness Deana Cole.

Also there was significant behaviour on the part of theAccused which showed that she was acting in a manner which was consistent with some level of alcoholic impairment. [77] Crown says that, just on that evidence of those two witnesses, that it has made their case beyond reasonable doubt but then does

concede, as they must, that I have to take into account the evidence that has been proffered by the Accused in this matter. [ 78 ] In that regard, it is Crown's submission that if there was to be any reasonable doubt raised by the evidence of the Accused that there must be, in Crown's words, a "constellation of coincidences" that came together for there to be a reasonable explanation, both of the driving behaviour and the personal behaviour of the Accused once she was in contact with both the civil witness as well as the police witness. [ 79 ] Crown says that I should disregard the evidence and explanation of the Accused.

Crown's submission is that there is a high degree of conflict and a lack of consistency in that evidence. Accordingly, I should be rejecting the explanations that have been provided by the Accused as not having any reasonable foundation. [ 80 ] Accordingly, Crown seeks a conviction on the remaining charge before me of care and control of a motor vehicle while the ability of the Accused was impaired by alcohol. Defence Submissions [ 81 ] It is defence's submission that the Crown must prove that the Accused's driving was affected by alcohol that she consumed.

Here they say that Crown has failed to do so. [ 82 ] I am asked to accept the W.(D.) formulation and apply it to the evidence provided by the Accused and therefore acquit. In that regard, I am asked to accept that the driving observed by Ms. Cole was impacted by the mechanical condition of the vehicle and by the dog's distracting behaviour, of attempting to move into the lap of the Accused.

Further I am being asked to accept the fact that the turn, without any gradual slowing or signal, into the parking lot at Combers Beach was necessitated by the urgency of the Accused to relieve herself because of a full bladder. [ 83 ] The second thing I am being asked to accept is that the vehicle came to its position in the ditch at the rear of the parking lot owing not to bad driving on the part of the Accused, influenced by consumption of alcohol, but rather by the fact that she simply popped the clutch at an inappropriate time, causing the vehicle to go forward when in fact she had intended to come to a full stop in the usual course. [ 84 ] The other thing that I am being asked to accept is that the Accused was not taking any steps that could be reasonably accepted, as Crown suggests, as an attempt to avoid detection by the police and to prevent her apprehension as result of the observed driving and the fact that the vehicle was ultimately placed into a ditch. [ 85 ] Defence relies heavily on the analysis that is set forth in W.(D.) and says, even if I do not believe her entire evidence, that there should be sufficient evidence before me to raise some reasonable doubt in my mind.

Accordingly, defence seeks an acquittal.

Analysis [ 86 ] I find that the evidence provided to me by the two Crown witnesses is both credible and is reliable. [ 87 ] On the other hand, I find that the evidence of the Accused is somewhat vague and her ability to recall interactions with both the civilian witness and with the police witness is vague and, in some cases, quite inconsistent with other portions of the evidence that she has provided. [ 88 ] Where there is any difference in the factual recall and the factual happenings between the evidence of the defendant and the witnesses Deana Cole and Constable Squire, the evidence of each of those two prosecution witnesses is more consistent, both internally and externally, and makes more sense and is more reliable when I am considering the whole of the evidence. [ 89 ] Having reviewed the whole of the evidence, and particularly the evidence of the Accused, I find that in many places it is somewhat vague and contradictory especially when she recalls matters concerning the timing of her alcohol consumption during the day and specifically in the time leading up to the events of June 8, 2014, when she was ultimately arrested.

I also find it is somewhat vague and inconsistent when she speaks about the amount of alcohol that she consumed that day prior to driving. [ 90 ] I find that the Accused's explanation as to her poor driving that was observed by Deana Cole is weak and I dare say in many respects fanciful. [ 91 ] The suggested causes of that poor driving, even if I were to accept a poor mechanical condition of the vehicle and low tire pressure, a distracting dog and full bladder, simply does not explain what was observed by the witness Deana Cole.

Those mechanical conditions, and even the distraction of the dog in the vehicle, do not adequately explain the constant and consistent veering of the vehicle which was observed for some 15 to 20 minutes by Ms.

Cole; it does not adequately explain the abrupt unsignalled turn into the Combers Beach parking lot, and it does not explain the Accused's apparent lack of awareness that her vehicle was continuing to run after the vehicle had been driven over the edge of the Combers Beach parking lot into the ditch. [ 92 ] The Accused suggests that the vehicle jumped forward as she let out the clutch before the engine was turned off completely.

When I take a look at the photograph and look at the considerable distance that the vehicle travelled from the edge of the parking lot into the ditch, it makes this suggestion implausible. [ 93 ] The engine was still running some five minutes later when Ms. Cole arrived at the scene and found the Accused sitting in the vehicle. If the excuse were to be accepted that the vehicle bolted forward in the process of turning it off, then it would have had to be that the Accused had restarted the vehicle. She gave no indication that this was the case.

[ 94 ] I am also of the view that the strong stale odour of alcohol that was detected by the two prosecution witnesses on the Accused provides a strong indication that the Accused was still experiencing the effects of alcohol consumption at the time that she was interacting with the two prosecutorial witnesses. [ 95 ] I am also left having to deal with some of the physical and behavioural indicia of impairment that was observed during the interaction of the prosecution's witnesses with the Accused. First of all, there were the repetitive answers being proffered by the Accused to Ms.

Cole about the fact that she was okay and that somebody was coming to pick her up.

There was the significantly poor balance that was observed, not only when the Accused alighted from the vehicle, but was continuing to be observed after the Accused was made aware of the fact that her dog was running towards the highway and when she was chasing after it. [ 96 ] The poor balance was also observed on the part of the Accused as she returned from the highway with the dog. [ 97 ] In terms of her personal behaviour, there appears to have been poor judgment on her part when she demanded that the witness Cole release the dog, notwithstanding the fact that it placed the dog at some risk.

From the evidence of Ms.

Cole, there appeared to be a significant lack of awareness on the part of the Accused about the personal risks that the Accused was placing herself into by going onto the highway in order to retrieve the dog. [ 98 ] I also accept the observations made by Constable Squire about the poor balance and inability of the Accused to stand properly and to move in an unimpaired fashion while she was attempting to move away quickly from the police officer. [ 99 ] Also I have concerns that her general behaviour when dealing with the police showed a thought process and behaviour that is not consistent with a person whose thought process is working in such a fashion as to indicate that they are unimpaired.

Specifically, I note that the Accused left her purse by the vehicle, totally unattended, only to be discovered by the police. [ 100 ] I note further that her behaviour of squatting down off the trail is totally consistent with her seeking to avoid detection by the police.

I also note the overall inconsistency of the timing of her later discovery well off the trail, located some distance from her vehicle where she says she was attending to the function of urinating and her previously stated urgent necessity to urinate when earlier she abruptly pulled the vehicle into the parking lot. [ 101 ] Also, I have the evidence she behaved in a very noncompliant and in a generally rude and belligerent manner when initially dealing with the police.

Accordingly I find it difficult to draw any other conclusion other than she was impaired by alcohol when evidencing that behaviour. [ 102 ] And then, I am left, of course, with the spontaneous utterance when she was told she was being arrested by the police for impaired driving that they couldn't prove that particular allegation. Conclusions in this case [ 103 ] I am of the view that Crown has proven its case beyond a reasonable doubt, on all essential elements of the offence of care and control of a motor vehicle while the Accused's ability to operate it was impaired by alcohol.

The explanations offered by the Accused do not satisfy the formulation in W.(D.) , and I am not left with any reasonable doubt about the Accused's impairment of her ability to drive, based on the whole of the evidence that I have heard and that I have accepted as factually correct. [ 104 ] Accordingly Crown has met its evidentiary burden. Decision [ 105 ] Therefore I find the Accused guilty of the charge on count 1. (REASONS FOR JUDGMENT CONCLUDED)