Court File and Parties

Court File No.: Barrie 12-3213 Date: 2013-11-22 Ontario Court of Justice

Between: Her Majesty the Queen — and — Elaine McCron

Before: Justice C.M. Harpur

Heard on: May 3, 2013 & October 23, 2013

Reasons for Judgment released on: November 22, 2013

Counsel:

• N. Stoner / I. Candola for the Crown
• M. Eisen for the Accused

Reasons for Decision

Harpur J.:

Overview

[1] Ms. McCron, 73, is charged with impaired care or control of her motor vehicle, failure to stop at the scene of an accident and failing or refusing to comply with the breath samples demand of a peace officer, all on the evening of June 1, 2012.

[2] Ms. McCron's charges came on for trial on May 3 and October 23, 2013. Ms. Stoner and Mr. Candola for the Crown called three civilian witnesses from the scene of Ms. McCron's accident as well as the arresting officer, P.C. Paolo Butera, and the breath technician, P.C. Guy Peters. Mr. Eisen for Ms. McCron called her and two civilian witnesses who spent some time with Ms. McCron prior to her accident on June 1.

[3] In support of the impairment charge, the Crown relies on the following: (i) the fact of Ms. McCron's striking a parked car with considerable force as she drove east on Wellington Street in the City of Barrie; (ii) some post-accident physical characteristics which the Crown characterizes as indicia of impairment; (iii) consciousness of guilt by Ms. McCron's failing to stop at the scene, if she is found to have done so; and (iv) consciousness of guilt by Ms. McCron in her failure or refusal to provide samples of her breath suitable for analysis, if found to have done so.

[4] In support of the failure to stop charge, the Crown relies on the evidence of the civilian witnesses to the effect that Ms. McCron exited her vehicle and walked west on Wellington Street away from the scene following the accident.

[5] In support of the refuse or fail to provide sample charge, the Crown relies on the evidence of P.C. Peters that Ms. McCron wilfully frustrated his efforts to obtain a suitable sample and on the DVD of Ms. McCron's session with P.C. Peters in the breath room.

[6] Ms. McCron's defences are that the accident occurred because she was blinded as she drove by oncoming high-beam car headlights, that she did not leave the scene of the accident or, if she did, did not do so with the requisite intent, and that she was making her best efforts to provide a suitable sample for P.C. Peters but was prevented from doing so by respiratory problems.

[7] For the reasons which follow, having applied the reasoning prescribed in R. v. W.D., I am left with a reasonable doubt concerning Ms. McCron's guilt on all three charges and I dismiss them.

The Charge of Impaired Care or Control

[8] There is no dispute in the evidence about the fact of Ms. McCron violently striking the parked car at approximately 10:40 p.m. on June 1, 2012. Steven Ryder was one of three residents at a home on the north side of Wellington Street directly across from the parked car. He said he saw a car driving eastbound very close to the south curb rapidly approaching his neighbour's parked car. He said the eastbound vehicle left until too late the necessary pull to the left to avoid the parked car, struck its rear end, scraped along the driver's side of the car and, apparently disabled, came to rest two or three car lengths beyond the parked car. Mr. Ryder said the four-way flashers on the striking car came on. He said he saw an apparently female person, admitted to be Ms. McCron, exit the driver's side of the striking car and walk slowly westbound on the street sidewalk. He said she proceeded fifteen to twenty houses to the west, and crossed to the north sidewalk of Wellington Street before the police arrived at Mr. Ryder's home in response to his call approximately fifteen minutes after the accident. Mr. Ryder acknowledged that his eyes were not on the roadway immediately prior to observing the moving car near the curb and that he could not comment on whether other cars were coming east or west on Wellington Street at the time, nor on the condition of their headlights if there were any.

[9] Kathryn Ryder, Mr. Ryder's wife, did not see the accident but did hear it. She joined her husband on their house porch. She said she saw a woman on the south sidewalk of Wellington Street near the vehicle which, seemingly, had done the striking walking along the sidewalk. She said that the woman was walking in a wavering line westbound on the south sidewalk throughout her (Mrs. Ryder's) observation. Mrs. Ryder could not comment on the speed at which the woman walked.

[10] Janice Bone, Mrs. Ryder's aunt, living with Mr. and Mrs. Ryder in their home, also heard but did not see the accident. She joined Mr. and Mrs. Ryder on the porch. She said she saw a woman exit the driver's door of the car which seemed to have done the striking. She said the woman retrieved an umbrella from the passenger side of the car, opened it and began to walk down the south sidewalk of Wellington Street. Ms. Bone described the woman as walking "slowly, purposefully, cautiously" with small steps. She said that the woman looked straight ahead. She said the woman walked west for approximately ten minutes before disappearing from sight just prior to the police arriving at the Ryder driveway.

[11] P.C. Butera said that at approximately 10:54 p.m. he came upon Ms. McCron walking on Wellington Street west of the accident scene. He described her position on the street as "a little bit further down from where the accident was". He said he approached her on the sidewalk and detected an odour of alcohol on her breath. He said her eyes were glossy and that her walk with him to his cruiser was slow and unsteady. He said that, once back at the accident scene in the cruiser and trying to find her licence, Ms. McCron "passed over it" several times, then located it and asked P.C. Butera if the card she had selected was her licence. P.C. Butera said Ms. McCron gave off a strong odour of alcohol when in the back seat of his cruiser. He arrested her for impaired care or control. P.C. Butera said that, at the police station, Ms. McCron "almost fell into [him]" when he took her from the holding cell to speak on the telephone with counsel, that her walk was again unsteady and that she was "holding herself up". He noted that her eyes were bloodshot. P.C. Butera acknowledged having no difficulty understanding Ms. McCron's speech in his dealings with her, and that he had made no note of her having movement difficulty when initially entering his cruiser or when moving from his cruiser into the police station. He acknowledged that Ms. McCron's holding herself up and being taken from the cells to the phone may have been a momentary placing of her hand on the wall.

[12] P.C. Peters gave no evidence of having observed indicia of impairment in Ms. McCron.

[13] Ms. McCron's evidence was that she consumed a glass of wine with her dinner on June 1 at around 6:00 or 6:30 p.m. and had had no other alcohol that day prior to her automobile accident. She said she drove to and shopped at Barrie's Georgian Mall following her dinner and was there until closing at 9:00 p.m. She said she then drove to the home of her son Cameron McCron at Peel and Wellington Streets in Barrie, and visited with him and his cousin William McCron until 10:40 or 10:45 p.m. She said she felt quite unaffected by the glass of wine she had had with her dinner when she left her son's residence. She said she drove eastbound on Wellington Street and collided with the parked car when blinded by the high beams of an oncoming car. She said that after the accident she tried to move her car to the roadside but that it was no longer operable. She said she put on the car's four-way flashers, got out and walked west on the south side of Wellington to the first house she saw with lights on. She said there was no response to her knocks so she proceeded to the next house with lights - at Wellington and Oak Streets - a few doors further west, again without any success. She said that at that point she elected to proceed on foot back to her son's home at Wellington and Peel Streets, the second intersection west of Wellington and Oak Street and a few minutes' walk from that location. She said her intent throughout was to call to report the accident. She acknowledged walking slowly and carefully but said she did so because her balance is poor, she has osteoporosis as well as feet which swell, she is in fear of falling when she walks and, on the night in question, she was wearing boots with two inch heels.

[14] She said it was as she was leaving the driveway of the second home at which she knocked that P.C. Butera pulled up beside her in his cruiser. She said she may initially have overshot her licence as she leafed through the approximate one-half inch of plastic cards in the change purse in her purse when in P.C. Butera's cruiser. She also conceded that she may have said "is this it" as she drew the licence out but that the interrogative was more from deference than uncertainty.

[15] Ms. McCron said that as a result of laser surgery and subsequent corrective surgery on her eyes, her eyes are more sensitive to light at night than when she was a younger woman and that her night vision can undergo "starbursts". She said she is subject to allergies, particularly in the spring, and that this makes her eyes permanently red. She said the large dog owned by her son's girlfriend and which is regularly at her son's home leaves behind a dander to which she is allergic. She said she was having an allergic reaction to the dog as a result of the visit to her son's home on June 1.

[16] Ms. McCron acknowledged that she may have steadied herself by placing her hand on the police detachment wall but that this was the natural result of being immobile for some time while waiting to speak to counsel.

[17] As indicated, Ms. McCron denied that she attempted to leave the scene of the accident to escape civil or criminal liability and denied that she wilfully failed to provide demanded breath samples.

[18] William McCron and Cameron McCron corroborated Ms. McCron's evidence that she drank nothing alcoholic while at Mr. McCron's home and did not seem affected by alcohol. William McCron was with Ms. McCron until approximately 10:30. Cameron McCron was with Ms. McCron throughout her visit to his house.

[19] I reviewed the video of Ms. McCron in the breath room at the police detachment. She exhibits no difficulties with her speech, thinking or movements.

[20] R. v. Stellato holds that the Crown must prove impairment of any degree by alcohol from slight to great, beyond reasonable doubt. Here, the fact of the accident in circumstances containing no unusual driving challenges, the strong smell of alcohol on Ms. McCron's breath noted by P.C. Butera and the seeming contradiction between Ms. McCron's concerns about walking and her wearing two inch heels on the evening in question all suggest that alcohol was affecting her ability to operate her car. However, while I cannot say that I accept Ms. McCron's explanation for the accident, I would also not reject it completely. It leaves me in doubt. It is supported, at least insofar as alcohol consumption is concerned, by William and Cameron McCron. While their sympathies in this matter clearly lie with Ms. McCron, nothing in their testimonies indicated that they were misleading the court.

[21] While it seems peculiar that a woman with concerns about her balance and walking would don high-heeled footwear, the heels and the concerns are not necessarily incompatible given the importance to all of us of keeping up appearances despite adversity.

[22] Mr. Candola invites me to find that a single glass of wine at approximately 6:30 p.m. would not produce a strong smell of alcohol on the breath at approximately 10:45 p.m. and, thus, that Ms. McCron's version of events in this regard should be disbelieved. While I am inclined to agree with Mr. Candola's suggestion as a matter of common sense, I am not prepared to do so in the absence of evidence on the point, particularly when (i) Ms. McCron has two witnesses who support her non-drinking at least for the approximate one and one-half hours during which Ms. McCron was at her son's home and (ii) there is nothing in the record to suggest that there was alcohol in Ms. McCron's car to be consumed between the visit to her son and the accident.

[23] In sum, apart from the accident itself, the indicia of Ms. McCron's impairment are few and, putting her case at its highest, are the subject of plausible explanations.

[24] As to the accident, the province having licensed Ms. McCron and she having regarded herself as fit to drive on June 1, 2012, one is hard-pressed to ascribe simply to her poor night-time vision her crashing into a parked car. Approaching drivers using their high beams are a regular event for all of us. If Ms. McCron is blinded by the phenomenon, one wonders why she was driving at night. The contributing factors may well have been, as the Crown submits, more than this difficulty. Again, however, I am not free of doubt that Ms. McCron's driving error alone was the cause, and she is entitled to the benefit of that doubt. Thus, I would dismiss the charge under s. 253(1)(a) C.C.

The Charge of Fail to Stop

[25] Mr. Eisen rightly submits that this is not a case in which the presumption set out in s. 252(2) C.C. applies since the Crown has not proven that Ms. McCron failed to stop her car. Although the Crown and defence differed in their submissions as to whether Ms. McCron's car stopped with or without her volition, it did stop.

[26] Absent the presumption, has the Crown proven that Ms. McCron failed to give her name and address with intent to escape criminal or civil liability?

[27] Mr. Ryder and Ms. Bone both testified that the engine in Ms. McCron's car was at a high level of revolutions per minute immediately following the collision. Mr. Ryder inferred from this that Ms. McCron was attempting to drive away but could not. Ms. McCron said she was trying to move her car after the accident but in order to park, not flee. The revving of the car engine is not inconsistent with her exculpatory explanation and with damage done to the engine in the collision. Her application of her four-way flashers suggests that she was not being furtive.

[28] Ms. McCron said that she did approach the two closest houses with lights on on the south side of Wellington Street to report the accident. Mr. Eisen succeeded in eliciting from the three civilian witnesses that their observations of Ms. McCron after the accident were not unremitting and that she might have approached one or more houses as she walked west on Wellington without their seeing her do so. I accept the evidence of Ms. Bone that Ms. McCron walked west looking straight ahead. This conduct seems odd in someone who purports to be seeking help from homes whose occupants are still active and when, directly across from the accident scene, was Mr. and Mrs. Ryder's home at 202 Wellington Street – a home which, I infer, was still lit, since Mrs. Ryder and Ms. Bone had just emerged from their activities inside it. However, the oddity relates to a seventy-three year old woman who had just been involved in a car crash of considerable violence, and I do not propose to apply to her the standard of an entirely clear-headed person.

[29] Ms. McCron's further evidence is that, not having achieved a response at either home near the crash scene which she tried, she decided to press on to her son's nearby residence to report the accident. I will take judicial notice of the fact that the distance from 202 Wellington Street East, the accident scene, to Mr. McCron's house at Wellington and Peel Streets is a distance of approximately 600 meters and could be walked in a few minutes. P.C. Butera said that Ms. McCron was approximately "a half block" from the accident scene when he came upon her, a description not inconsistent with hers to the effect that she had walked slightly west of Oak Street when P.C. Butera arrived. P.C. Butera also said that he was at the accident scene within three minutes of receiving the radio call and that his conversation with the Ryders and Ms. Bone was brief, as was the time from that conversation to finding Ms. McCron. P.C. Butera's and Ms. McCron's evidence threw some doubt on the fifteen minute period described by Mr. Ryder as having elapsed from the accident until the arrival of the police.

[30] On the totality of evidence on this charge, I am left with a doubt (i) that Ms. McCron "failed to give her name and address", given the brevity of the time available to her to do so or (ii) even if she failed, that she did so with a view to escaping liability. The charge is dismissed.

The Charge of Fail or Refuse to Provide a Sample

[31] There is no issue in this case as to the proper making of a demand by P.C. Peters pursuant to s. 259(3)(a)(i) C.C. nor of, ultimately, Ms. McCron's failure to provide to P.C. Peters any samples of her breath suitable for analysis. Rather, the issue is Ms. McCron's mens rea. This was P.C. Peters' first encounter of a refusal as a police officer. His opinion was that Ms. McCron was deliberately refraining from expelling enough air from her lungs for long enough, despite many opportunities, his coaching and his instructions on how to provide a suitable sample. Judging by the video made Exhibit 3, this opinion is not without any basis. P.C. Peters does attempt to instruct Ms. McCron before she begins to blow and provides encouragement during all attempts. She is given eight opportunities and seemingly would have had more if she had not spent part of her later minutes in the breath room upbraiding P.C. Peters for not believing her sincerity.

[32] On this last point, Mr. Eisen submits that P.C. Peters was, following Ms. McCron's eighth blow, offering her still more chances and that his re-negging of that position when the machine timed out precludes grounds for the charge, since Ms. McCron had not failed or refused the further proffered opportunities. Mr. Eisen relied on R. v. Sawchuk, [1982] S.J. No. 475 (Sask. Queen's Bench) and R. v. Mohamed (unreported decision of Krelove J., O.C.J., released February 29, 2012) in making this submission. I regard both cases as distinguishable. In neither Sawchuk nor Mohamed was the defendant found to have been given fair warning that he was about to run out of chances. Here, on the other hand, P.C. Peters told Ms. McCron repeatedly that her opportunities would end "when the machine timed out". He had told her previously of his opinion that she was intentionally declining to provide sufficient lung air. The additional opportunities were not, in my view, indicative of P.C. Peters not having reached a "failure" conclusion, as was found in Mohamed. They were simply a time-limited chance for Ms. McCron to do thereafter what P.C. Peters felt she had declined to do to that point: blow as instructed to provide a suitable sample. In short, I find that the officer did not "re-neg".

[33] That was not, however, the end of the evidence. Exhibit 3 discloses that the mouthpiece used by Ms. McCron on her first three "attempts" was not checked for obstructions before it was used and discarded. In the absence of that evidence, I am cautious about drawing the common sense inference for these "attempts" that one intends the consequences of one's act.

[34] The next five "attempts" are made using a mouthpiece demonstrated by Ms. McCron to be unobstructed. However, after the sixth attempt, Ms. McCron genuinely appears to think that, because she has succeeded in causing the instrument to make a tone sound, however briefly, she has provided a suitable sample. P.C. Peters then provides her, for the first time, with unambiguous advice about the need for a sustained tone. Ms. McCron blows twice more without a successful result. The instrument then times out.

[35] At trial, Ms. McCron testified to having asthma since childhood and, for six months prior to June 1, 2012, respiratory problems which she thought might be pneumonia and which led to her ultimately seeking medical assistance. No medical records were put into evidence.

[36] Cameron and William McCron confirmed awareness of Ms. McCron's asthma, evidence I admitted not for its truth but in response to cross-examination of Ms. McCron which I regarded as implying recent fabrication.

[37] During her time with P.C. Peters, Ms. McCron does repeatedly advert to the weakened condition of her lungs and to this as a contributing factor in her inability to provide the necessary sample.

[38] The final piece of noteworthy evidence on this charge was that of P.C. Peters as to the nature of the exhalation required to produce a suitable sample. Although the topic was the subject of questioning both in chief and in cross-examination and although I asked for clarification on the point, the officer's evidence remained ambiguous. On the one hand, he said that a "hard, consistent" blow was required and that "blowing good and hard gets it going". On the other, he said that nothing more was needed than the force one uses to create bubbles in a cup of liquid by blowing into it through a straw. The latter is not a force of air I would characterize as "hard" or "good and hard".

[39] If I take into account P.C. Peters' first two descriptions of the required blow, together with (i) some evidence of limitations on Ms. McCron's ability to produce that kind of exhalation for any of her attempts, (ii) the lack of proof of absence of obstruction for attempts one to three, and (iii) some evidence of uncertainty on Ms. McCron's part as to how long she needed to blow in attempts four, five and six, I am not satisfied of the wilfulness of her repeated failures. This charge is also dismissed.

Released: November 22, 2013

"Justice C.M. Harpur"