R. v. Dias, 2012 ABQB 729

Court of Queen ’ s Bench of Alberta Citation: R. v. Dias, 2012 ABQB 729 Date: 20121207 Docket: 080867245Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Glen Dias Accused Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Corrected judgment: A corrigendum was issued on January 7, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: The publication ban expired on November 2, 2012.

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Introduction [ 1 ] The Accused was charged in July 2008 with failing to stop while being pursued by a peace officer (s. 249.1(1)), failing to comply with a breath sample demand (s. 254(5)), impaired operation of a motor vehicle (s. 253(a)), dangerous driving (s. 249(1)(a)), and threatening to use a vehicle as a weapon in committing an assault upon an officer (s. 267(a)). Facts [ 2 ] The Accused on the morning of the first day of this trial alleged infringement of his s. 7 and s. 11(

b) Charter rights to be tried within a reasonable time. The Crown and Accused provided written submissions, supplemented by oral argument and the Accused testified. I dismissed the application in the afternoon of the first day. I subsequently provided more detailed reasons: 2012 ABQB 680 . [ 3 ] The trial then proceeded and the Accused was arraigned.

He entered a guilty plea to the first count (Count 1) on the Indictment - failing to stop while being pursued by a peace officer (s. 249.1(1)) (Flight) - and not guilty pleas with respect to the other four counts. [ 4 ] A CD was produced which contained a compilation of communications among various members of Edmonton Police Services who were involved with respect to the Flight. [ 5 ] The police helicopter (Air One) was involved during the Flight. [ 6 ] The Accused testified at the trial .

At the close of the trial, the Crown applied to have the Accused ’ s guilty plea struck on the basis that he did not make the admissions required for a guilty plea on Count 1when he testified. I reserved on this issue and advised that I would give written reasons on all issues. Evidence of Crown Witnesses [ 7 ] Marcy Belayneh is the owner of Duster’s Pub (Duster’s), which is located at 6402 - 118 Avenue in Edmonton. She testified that the Accused and three women came into the premises to drink on the evening in question.

She stated that their eyes “weren’t right” in that they were red and that the individuals smelled of marihuana. She described the Accused as “high” but not drunk. [ 8 ] Belayneh recalled that one of the women did not have picture identification and was asked to leave. Belayneh stated that she took a pitcher of beer and three glasses away and asked the Accused and the two remaining women to leave the premises but they refused. She stated that the Accused and the two other women began to cause problems and that a “ big fight ” ensued. They were asked to leave several times but that they refused.

She recalled that they did not seem to know what they were doing and wanted to fight with everyone. The commotion escalated, chairs were knocked upside down, a table was knocked over, beverage glasses were smashed and

drinks spilled. She recalled that the Accused ’ s sister threw a glass at a waitress, a cook got hit by the sister and the Accused ’ s girlfriend, and several employees were involved in trying to get them to leave. She stated that the Accused was also fighting with customers in an attempt to back up his sister. [ 9 ] Belayneh stated that she phoned the police because of the disturbance. She recalled that the two women were caught by the police, but she was not sure if the Accused was caught, as she last saw him run out the back door and into the alley.

She stated that she did not think the Accused was drunk because when the police arrived he ran away very quickly. [ 10 ] She noted that the Accused departed in the direction of the parking lot after the police arrived and she knew that the police tried to chase him, but she could not recall any further details because of her involvement with the two women. [ 11 ] Emile Auger, a retired constable from Edmonton Police Services, testified as to how police in Edmonton communicate using radio channels. He stated that all officers use the same channel in order to communicate when involved in a particular matter.

He produced a disc which contained a compilation of the communications generated while various police officers were involved immediately before and during the Flight. [ 12 ] Destiny Dias testified that she went with her mother, the Accused and the Accused’s girlfriend to Duster’s Pub on the evening in question. She is the niece of the Accused . She stated that she was underage at the time and after being in the pub for about 20 minutes, she was asked for ID and had to leave. She stated that she had a cigarette and waited outside for about an hour at which point her uncle came out by himself.

She then went with him to his truck but could not recall any conversation she may have had with him at the time. [ 13 ] Ms. Dias stated that she heard a police siren as they were driving away and saw police inside and outside of their vehicles. She said she could tell from the tone of her uncle’s voice that he was scared as they drove away. She stated that her uncle was driving fast through a residential area and that she knew the police were following them from the sound of the sirens and the red and blue flashing lights. Ms.

Dias estimated that the Accused was driving 20 km/h over the speed limit and stated that he did not stop at any stop signs. Further, she estimated that they were followed by the police with lights flashing and sirens sounding for 10 minutes or longer. She had no recollection of the truck having a damaged tire. Ms. Dias stated that she had not noticed the smell of alcohol on the Accused and had no knowledge as to his sobriety. [ 14 ] Ms. Dias stated that when the Accused stopped his truck behind a house, he told her to run, which she did.

She stated that she hid under the stairs of the house but was found by a police dog. [ 15 ] Sergeant Morrison testified that he was working as a temporary acting sergeant on patrol by himself in North Division on the evening in question. He stated that he learned on the North Division police channel at about 1:35 a.m. on the day in question that there was a disturbance at Duster ’ s Pub. The caller said that people were destroying the bar. He arrived in his police cruiser a few minutes after receiving the call and noticed people milling about outside the bar.

The manager of the pub pointed out one female who seemed agitated and was confronting three other females. She was intoxicated and seemed to be about to assault the three other women. She was belligerent and confrontational when he approached her and ignored him when he told her she would be placed under arrest. When he took her arm, she resisted and he had to take her to the ground and place her in handcuffs. He called for police backup at this point in time as a crowd was forming.

This caused him concern as he described Duster ’ s Pub as a “ rougher place ” where the patrons are not “ police friendly ” . [ 16 ] While taking the woman to the ground, Sgt. Morrison heard heavy footsteps of someone running towards him. It was the Accused who said he wanted to see what was going on. Sgt. Morrison told the Accused to stay back and he complied. He noticed that the Accused’s speech was a bit slurred and formed the opinion that he was intoxicated. The manager identified the Accused as one of the troublemakers.

At this point, Constable Newell arrived and he was directed to deal with the Accused and another female, as Sgt. Morrison was still dealing with the woman (later identified as Nancy Dias) whom he had handcuffed. [ 17 ] Sgt. Morrison then handcuffed Nancy Dias to a poll and noticed that Cst. Newell was dealing with the other belligerent female. Sgt. Morrison asked where the Accused was and noticed that a truck parallel parked and facing south on the west curb of 64 th Street was starting up and that the driver was trying to get out in a hurry.

He believed the driver was the Accused and was concerned that he was impaired. As the truck pulled out in a southbound direction, he yelled at the driver to stop, but the truck accelerated quickly and the driver tried to make a U-turn to head north. As the road was too narrow, it struck a vehicle and Sgt. Morrison continued to yell and punched at the door and window with his hand or flashlight but the driver, whom he identified as the Accused, did not comply. Sgt. Morrison stated that the Accused was able to turn the vehicle north, and that while he was standing in the middle of the street behind the

truck he saw the Accused look back, put the vehicle in reverse (the reverse lights came on) and accelerate towards him. He drew his police pistol but realized that the vehicle would hit him regardless of whether he shot at the Accused. He was able to bolt between two vehicles to avoid being struck. He could not recall whether his flashlight was on at this time. [ 18 ] Sgt. Morrison stated that after he jumped out of the way, the Accused reversed the direction of his vehicle, struck another vehicle, stopped for a moment and then accelerated in a north bound direction. He saw the vehicle turn towards 119 th Avenue.

At about this time, he heard another police cruiser come up behind him and he told the officers which direction the truck was heading. [ 19 ] Sgt. Morrison stated that it was his job to monitor the criminal Flight, and he managed the pursuit from inside his police vehicle. He then went to the site where the Flight terminated. He saw the Accused, who had been taken into custody and was handcuffed. He stated that he observed the Accused walking on his own and that the Accused did not have any overt injuries. He recalled that there were about four other officers present at this time. [ 20 ] Cst.

Newell testified that he received a call to go to Duster’s Pub on the evening in question. He recalled that Sgt. Morrison was dealing with an intoxicated female and Sgt. Morrison instructed him to locate another intoxicated female and a male. He observed a male and a female walking on 64 th Street. The male was around 15 feet ahead of the female. The male kept walking but the female (later identified as Julie Davis) stopped. She showed obvious signs of impairment in that she smelled of alcohol and was unsteady. He arrested her for public intoxication. He told Sgt.

Morrison that the male had continued walking and Sgt. Morrison went to look for the male while Cst. Newell continued dealing with the intoxicated female who was belligerent and uncooperative. He recalled that the male got into his truck and started it, and that the truck started to move. [ 21 ] Cst. Newell recalled observing the truck move forward when it was facing northward and than back up at a high rate of speed to where Sgt. Morrison was standing, and he observed Sgt. Morrison jump out of the way in order to avoid being struck.

He stated that he was standing about four to five metres away and had a clear view of what transpired. He saw the driver turn around with his right hand on the bench of the seat and his left hand on the steering wheel. He believed that the vehicle struck another vehicle while backing up and perhaps another vehicle after reversing and moving forward. He estimated that the Accused’s vehicle backed up about two car lengths before reversing to go forward. [ 22 ] Cst.

Newell was not able to comment on the state of sobriety of the Accused, stating that his observations were directed towards the belligerent female whom he handcuffed and directed to sit on the grass. [ 23 ] Constable Junio testified that he was on general patrol in North Division on the evening in question. He was aware there was a disturbance at Duster’s Pub, and at around 1:39 a.m. he heard Sgt. Morrison ask for assistance on the police radio. He arrived at the scene in a police cruiser which was being driven by his partner, Cst. Kachkowski. Cst. Junio saw Sgt.

Morrison pointing to a dark pickup truck proceeding northbound on 64 th Street and heard Sgt. Morrison stating on the radio “ that ’ s the car - that ’ s the car ” . Cst. Junio stated that they were initially about a block and a half behind the vehicle, but could see it with the street lights, and saw the right rear tire blow and start sparking before it proceeded to go east on 121 st Avenue. [ 24 ] Cst. Junio stated that he and his partner continued the pursuit as he understood that the driver had tried to run over Sgt. Morrison. He stated that throughout the pursuit he could see the right rear tire sparking.

He recalled that the Accused ran a stop sign at 34 th Street and then proceeded westbound on 119 th Avenue. He stated that they were called off the pursuit at about 57 th Street as he learned that Air One was on the way. He estimated that the police cruiser had gone from 60 to 90 km/h to catch up and stated that the speed limit in the area was 50 km per hour. [ 25 ] Constable Kachkowski confirmed that he was working with Cst. Junio on the evening in question and recalled seeing the Accused’s vehicle speeding away from Duster’s Pub with Sgt. Morrison pointing towards it as they went by.

He stated that he accelerated and activated the cruiser’s overhead lights and siren which he kept on throughout the Flight. He noted the flat rear tire on the vehicle and stated that the tail lights were out or went out during the pursuit. He estimated the speed of the truck as being between 60 and 80 km/h at various points during the Flight as it sped up and slowed down. He also noted the vehicle weaving back and forth towards the curb. He observed the Accused run through the stop sign at 34 th Street. He stated that there was almost no traffic in the residential area at this time of the morning. [ 26 ] Cst.

Kachkowski confirmed that they stopped pursuing the Accused for public safety reasons when Air One became

involved. Cst. Kachkowski stated that he did not have any involvement with the Accused when he was taken into custody. However, he was involved in the arrest of Destiny Dias after she was located, and he drove her to the police station. [ 27 ] Constable Cruise testified that he was assigned to the police helicopter known as Air One and was trained to use the infra red camera, spotlight and radio. On the evening in question, he became aware of the Flight from communications on the police radio.

He stated that the helicopter arrived at about 58 th Street and 120 th Avenue and recalled that he saw the Accused’s vehicle, described as a black pickup truck, being followed by two police vehicles with their emergency lights on. He stated that the truck did not have its lights on. [ 28 ] Cst. Cruise stated that Air One continued to follow the Flight and he saw the Accused’s truck stop in an alley between 64 th and 65 th Streets. He saw two individuals exit, noting that the driver was wearing a dark shirt and the passenger, a white shirt.

He followed the driver as he ran to 66 th Street and had the spotlight on him when he was taken into custody. Cst. Cruise stated that he did not see any force being used on the Accused, but also stated that Air One may have left before the Accused was handcuffed. [ 29 ] Constable Auger testified that he is a qualified breath technician. He became involved sometime after 2:00 a.m. when the Accused was taken to the North Division police station. Cst. Auger stated that the Accused was in the custody of Cst. Bulas at the time. Cst.

Auger observed that the Accused had two small bumps on the right side of his forehead, bloodshot eyes, a flushed complexion and was unsteady on his feet. He further noted that the Accused had a moderate smell of alcohol, was not being cooperative and was belligerent in nature. He stated that he read out how to provide a proper sample, and the Accused responded by saying he would not provide a sample. Cst. Auger was not sure how many times he asked the Accused to provide a sample, but stated that the Accused was given the opportunity on more than one occasion. Cst.

Auger stated that he believed the Accused understood the request and further recalled him stating: “ I won ’ t do it - no way - won ’ t do it for this division - look at my face - they beat me up ” or words to that effect. [ 30 ] Constable Bulas testified that she was on duty on the evening in question with her partner Cst. McConnell. Cst. Bulas was dispatched to Duster’s Pub because of the reported disturbance and when the marked police cruiser she was driving was about a block away, she learned from Sgt. Morrison over the police radio that a male had fled the location in a truck.

She stated that they spotted the truck and noticed sparks coming from its rear. Cst. Bulas stated that her vehicle was engaged as a secondary vehicle during the Flight at about 54 th Street and that she saw the Accused go through stop signs at 54 th , 50 th and 34 th Street while travelling east on 121 st Avenue. She estimated that speeds were at times in the vicinity of 100 to 120 km/h. She noticed that the vehicle was swerving during the Flight. [ 31 ] Cst.

Bulas stated that she did not know who was driving the truck, but that after Air One became involved and she learned that the vehicle had stopped, she parked the cruiser on 65 th Street and saw the Accused run right in front of the police car. She stated that she and her partner commenced their pursuit of the Accused on foot and saw him cut through a yard on the west side of 65 th Street. However, she next spotted the Accused, who did not appear to be co-operating, on the ground being held down by other police officers. Cst. Bulas stated that she then went back to get the police cruiser.

On driving it to the scene, she saw that her partner had the Accused in handcuffs. He walked the Accused to the rear passenger door of the cruiser, but the Accused was belligerent and refused to get in. He had to be pushed into the vehicle and was arrested for criminal Flight. [ 32 ] Cst. Bulas testified that the Accused had difficulty standing by the side of the police vehicle and that it seemed that her partner, Cst. McConnell, was holding him up when he was being walked to the police car. She further noted that his eyes were glassy and she smelled alcohol on his breath.

She recalled that the Accused yelled and stuttered at times and then was in an emotional mood and crying, stating that he ran because he did not have vehicle insurance. At one point she stated that he spoke in a foreign language. While in the back of the police car, Cst. Bulas noted that the Accused had a red bump on his forehead. He rambled on quite a bit and when she tried to speak with him, he would interrupt her and say: “ I am not listening to you ” . Cst. Bulas stated that she formed the opinion that the Accused ’ s ability to operate a vehicle was impaired by alcohol.

She arrested him and read him his rights. [ 33 ] Cst. Bulas stated that the Accused said he had been beaten up and that he was calling a lawyer as soon as he got to the police station. Cst. Bulas stated that it took some time to read the Accused his rights as he refused to listen. She recalled that there was a strong smell of alcohol both in the police cruiser and in the cell block. After being searched, the Accused was taken to the phone room to call a lawyer and Cst. Bulas noticed that he had difficulty walking from the search area to the phone room.

She stated that the Accused said he could not see the phone numbers on the phone and that she dialled legal aid for him. She recalled that when a breath sample was demanded on more than one occasion, the Accused refused saying words to the effect: “ You ain ’ t getting nothing from me ” and “ No - No ” . Cst. Bulas stated that she was present when the technician Cst. Auger gave the Accused instructions with respect to how to use the Breathalyzer. She stated that as he refused, she told him he would be charged for refusing. Cst.

Bulas stated that because the Accused was complaining that his head hurt, he was then taken to a medical clinic next door to the police station.

[ 34 ] Constable McConnell confirmed that he was seated in the passenger seat of the police cruiser driven by his partner, Cst. Bulas. He recalled that they became engaged as a secondary vehicle during the Flight as the Accused’s truck was proceeding at a high rate of speed east on 121 st Avenue with its lights off while being pursued by another police vehicle. Cst. McConnell stated that the Accused proceeded through three stop signs without stopping while proceeding in an easterly direction, and then through a number of yield signs after it turned south onto 120 th Avenue.

It then proceeded in a westerly direction to the point where the truck was abandoned and the Accused fled on foot. Cst. McConnell noted that the vehicle was swerving back and forth on the road while being pursued. [ 35 ] Cst. McConnell stated that when he learned from Air One that the Accused’s vehicle had stopped, the emergency equipment on the cruiser was turned off and they drove to 121 st Avenue and 65 th Street. They learned from Air One that the driver was running westbound and the individual ran right in front of the police cruiser. Cst.

McConnell confirmed that he started to pursue on foot and saw the Accused jump a five or six foot tall fence. He climbed over the fence and saw people on the ground. As he got closer, he saw that the Accused was down on his face with other officers holding his hands up behind his back. Cst. McConnell then proceeded to handcuff the Accused. [ 36 ] Cst. McConnell stated that he did not make any observations of the Accused until he stood up or was helped up, at which point he could smell liquor and noted that his eyes were red and glassy.

He further noted that the Accused was staggering and having difficulty walking a straight line as he walked him back to the police car where he did a search before placing him in the vehicle. Cst. McConnell stated that the Accused was very boisterous, was angry with him and said it was a “small world and he would get him”. At one point, he recalled that the Accused said he would give him “a big kiss” which he regarded as highly unusual and further recalled him using a different language before coming back to English. Cst.

McConnell noted that the Accused had a small bump on his right cheek, but did not hear him complain at this time of any injuries. At the police station, he heard the Accused refuse to supply a breath sample to both Cst. Bulas and the operator of the Breathalyzer. Cst. McConnell remembered that the Accused fell into the door on the way into the Breathalyzer room. He also recalled the Accused’s sister, Nancy Dias, being brought into the station and the Accused saying words to the effect: “If you touch my fuckin’ sister, I will kill you”. [ 37 ] Cst.

McConnell stated that he did not see any officer strike the Accused while he was on the ground before being handcuffed, and stated that he never struck him at any time. He confirmed that the Accused requested medical attention at the police station and that he took him over to the medical centre which was about 40 metres from the station.

The Accused was examined there. [ 38 ] Constable Dascavich testified that he prepared the Collision Report Form and the Hit and Run Supplementary Report with respect to the collision that occurred, before the Flight commenced , between the Accused ’ s vehicle and a commercial van near Duster ’ s Pub at 64 th Street and 118 th Avenue. He stated that he also relieved Cst. McConnell and took over custody of the Accused at the medical centre.

He then took the Accused to the Royal Alexandra Hospital for a CT scan. [ 39 ] Constable Kluthe testified that he attended at the scene where the Accused’s vehicle had been abandoned and arranged to have it seized and towed. He noted: the rear bumper was bent, there was damage to the front bumper on both sides, there was spider web damage to the windshield on the driver’s side, and it had a flat tire.

He further noted that the keys were in the ignition and he found a Safeway bag in the cab with nine empty cans of beer. [ 40 ] Constable Perry testified that he was working alone in the Downtown Division on the evening in question and learned over the police radio of the Flight in North Division which was heading towards downtown. He stated that a criminal Flight is broadcast on all police channels. He proceeded east in his police cruiser towards the scene and saw a truck with its lights out head west on 121 st Avenue and turn into an alley between 65 th and 66 th Streets.

He learned from Air One that the vehicle had stopped and that the driver was running westbound. Cst. Perry stated that he exited his vehicle and took up a position near a house on 66 th Street. [ 41 ] Cst. Perry heard the Accused crash through some bushes by the house and told him to get on the ground when he spotted him. He stated that the Accused did not comply and started to take off. He tried to strike the Accused in the leg with his police baton but it flew out of his hand and he was not sure whether or not the baton struck the Accused.

He stated there was a dip for drainage near the houses and that both he and the Accused fell down, and he then wrestled with the Accused to try to get control of his hands as he was concerned for his safety. Cst. Perry estimated that they struggled for 10 or more seconds and eventually he was able to pry the Accused’s left arm from under him. At this time, two other officers arrived. One grabbed the Accused’s right arm and the other handcuffed him. Shortly after he was handcuffed, the Accused was taken to a police car. Cst.

Perry said that he had no further contact with the Accused other than what occurred during the wrestling and did not notice any bruises or injuries on him.

[ 42 ] Cst. Perry recalled that the Accused was yelling and swearing, and was belligerent, but he could not comment on his sobriety. [ 43 ] Constable Surmon testified that he is a dog handler and was on duty with police service dog Chic on the evening in question. He was advised of the Flight and was asked to assist. He learned that Air One had spotted the Accused’s abandoned truck before he arrived.

He stated that there were several police units ahead of him, and that as he entered the area he saw an individual jump over a fence, but he then saw that the officers on the ground had the matter in hand and he drove directly to the Accused’s truck. With police dog Chic, he confirmed the track of the Accused from the vehicle to where he jumped over the fence. Cst. Surmon then started back from the truck to start a second track to find the passenger, but Destiny Dias was hiding so close to the truck that police dog Chic immediately found her hiding under the porch of the nearby house. Cst.

Surmon stated that neither he nor police dog Chic had any contact with the Accused. Evidence of Accused [ 44 ] The Accused testified that he worked for a security firm installing security systems and that after getting off work at around 5:00 or 6:00 p.m. on the day in question, he went to his sister Nancy’s house for a barbeque. He stated that he had one beer during the barbeque and that after a couple of hours, he went with his sister, girlfriend and niece to visit his sister’s friend who had a newborn baby.

The Accused recalled that this visit lasted a few hours, but that he did not have anything to drink at that time. [ 45 ] The Accused stated that after the visit, they were supposed to go home but his sister suggested that they go to the bar and celebrate. He testified that he did not want to go, but went anyway and after arriving at Duster ’ s Pub - either just before or after midnight - they ordered a pitcher of beer. He stated that a band was playing and he sat with his niece Destiny but could not recall where his sister and girlfriend were situated.

The Accused stated that while enjoying the band, he heard his sister yelling, “ Glen - Glen ” and that he looked towards the VLT area to see what was going on. He stated that he told Destiny to stay where she was, and on arriving at this area of the bar, he saw his sister on the ground with two males, who he thought were security for the bar, on top of her. [ 46 ] The Accused said he was concerned about his sister’s safety, asked the individuals to leave her alone and recalled that they backed off.

He stated that his sister was intoxicated and irate and hit someone, and that a commotion ensued where tables were tossed and beer was poured on him from one of the tables. He further stated that he convinced his sister to leave, but before they got to the front door she said she had forgotten her purse and went back to the VLT area to get it. He testified that his sister began to fight again with the staff and others. He stated that he was concerned about Destiny’s safety as Duster’s is not a good bar and said to her: “Lets go”.

However, he recalled Marcy Belayneh approaching them just before the second altercation and asking for Destiny’s ID. As she did not have any, he recalled Ms. Belayneh telling them to leave. He stated that he asked if he could finish his beer, but she said “no” and then he complied. He stated that he and Destiny left out the back entrance and went towards his vehicle. [ 47 ] The Accused stated it was very dark outside and he heard someone screaming. He stated that it sounded like a female was hurt outside the bar and he went to see what was wrong.

As he approached, he saw a large man in dark clothing pointing and as Duster’s Pub is a very bad bar he said to Destiny, “Let’s stay out of this” as he was afraid his truck might be damaged. He stated that he did not know that this person was a police officer nor that the screaming female was his sister. [ 48 ] The Accused testified that he had been on medication for depression and anxiety disorder but that his prescription had run out.

He stated that he had been off his medication for three to four days because his doctor only worked until 4:00 p.m. each day, and the Accused worked long hours and overtime so he could not meet with the doctor. [ 49 ] The Accused recalled that his vehicle was parked in a tight spot and that he backed up a little bit in the parking stall, pulled away, went east into an alley, signalled, reversed, backed up and then proceeded north on 64 th Street. He stated that he had no recollection of an officer banging on the side of his vehicle or standing behind his vehicle.

He stated that his vehicle had “awesome” mirrors which he checked, and that he made sure everything was fine before backing up in a normal fashion. He stated that he was trying to get Destiny home and recalled that she lived near 30 th Street and 115 th Avenue. He thought he turned right off of 64 th Street, but could not remember if it was 119 th Avenue and remembered seeing blue and red lights after going around the corner for a block or two. He stated that he slowed down and did not know if the blue and red lights were for him.

He stated that he had no insurance, that his anxiety condition amplified and that he panicked and kept going.

[ 50 ] The Accused could not recall what speed he was travelling, but stated that he stopped at stop signs as best he could with the police behind him. However, he was panicking and at some point finally realized that the police were after him. He was not sure where he finally exited his vehicle, but recalled telling Destiny to stay in the vehicle, stating “You will be safe” and saying further “They will probably beat me”. He stated that he panicked and ran through a yard and recalled seeing the whole street lit up like a Christmas tree with police cars.

He recalled hearing a dog barking. [ 51 ] The Accused stated that he heard someone behind him near a fence and jumped over the fence and said “I surrender”. He testified that he was told to get to the ground, then handcuffed and kicked on the ground. He recalled that the Air One lights were off and that he received blows to the back of his head and neck. He stated that he was shoved into the ground and felt a boot to the side of his head that almost knocked him unconscious. He stated that he kept getting hit and lost consciousness.

He believed that he saw eight or more officers plus a barking dog before he jumped the fence. He stated that he was beaten so badly that he could not walk to the police car, and that someone squeezed his arm when he was placed in the police car and he had a big welt for months. The Accused stated that his head felt like a football and that he had a very vague recollection of being at the police station.

He stated that he had no recollection of being taken to the Breathalyzer room, but did recall asking for medical assistance. [ 52 ] The Accused testified that he was given pain medication at the Northeast Community Health Centre and recalled that the doctor was very angry and demanded that the police officer take him to the Royal Alexandra hospital for a brain scan as the health centre could not check his brain for injury. His medical records from the Health Centre were marked as an exhibit. [ 53 ] On cross-examination, t he Accused stated that he had no memory of his niece leaving the bar.

He speculated that she may have gone out to smoke while he was listening to the band. He had no memory of her waiting outside for an hour. He stated that he smelled of alcohol as it was spilled all over him during the fight. He recalled hitting a parked car. He stated that he did not know the tire on his truck had blown until after he was arrested and that while the vehicle was difficult to drive he did not know why it was swerving during the Flight. [ 54 ] The Accused stated that he does not remember things well because of his head injuries and he remembers some things better than others.

He stated that he recalled quite a few police cars behind him before he was arrested, and something very bright which was probably the light from the police helicopter. However, he had no clear recollection of driving. He stated that he did not hear police sirens or the helicopter as his stereo was on. He denied telling Destiny to run when he stopped the vehicle, stating that he told her to stay put. He had no memory of a police officer with a baton or anyone trying to get his arm out from under him, but he remembered being handcuffed and kicked repeatedly.

He denied saying to Constable McConnell: “It’s a small world and I am going to get you”. [ 55 ] The Accused stated that he did not require stitches, but his head swelled up about two or three inches on each side of his temple and he subsequently made a complaint to the police. Position of Accused [ 56 ] The Accused submits that he only had one beer prior to the Flight and that while his actions during the Flight may have constituted the traffic offence of careless driving, they did not amount to the criminal offence of dangerous driving.

Further, the Accused stated that he was beaten by police officers when he was caught at the end of the Flight, and in the circumstances had a reasonable excuse for refusing to provide a breath sample. Finally, with respect to the charge of using a vehicle as a weapon in committing an assault upon an officer, the Accused specifically denies the allegation and argues that he is entitled to a reasonable doubt based on the W(

D) analysis. Position of the Crown [ 57 ] The Crown submits that it has proven the guilt of the Accused beyond a reasonable doubt on all of the charges. It specifically denies that the Accused was beaten by police officers when he was caught after the Flight. The Crown argues that the Accused was not a credible witness; in particular, the Accused had a selective memory, in that while he gave precise evidence on matters that put him in a good light, he was evasive and had a poor memory or no memory on other matters. Law

[58] The Crown cites: R v Andrews, 1996 ABCA 23, 178 AR 182, leave denied [1996] SCCA No 115, R v Appleby, 2010ABQB 674, [2010] AJ No 1246, leave denied 2011 ABCA 118, [2011] AJ No 859, R v Beatty, 2008 SCC 5, [2008] 1 SCR 49, R vBellamy, 2009 ABQB 759, 486 AR 35, R v Bernshaw, (SCC), [1995] 1 SCR 254, [1994] SCJ No 87, R vDwernychuk, 1992 ABCA 316, 135 AR 31, leave denied [1993] 2 SCR vii, R v Edlund (1990), 1990 ABCA 49 , 104 AR 354,23 MVR (2d) 31 (CA), R v Huddle (1989), 1989 ABCA 318 , 102 AR 144, [1989] AJ No 1061 (CA), R v Hundal, (SCC), [1993] 1 SCR 867, [1993] SCJ No 29, R v Musurichan (1990), 1990 ABCA 170 , 107 AR 102, [1990] AJNo 418 (CA), R v Rhyason, 2007 SCC 39, [2007] 3 SCR 108, R v Shepherd, 2009 SCC 35, 2009 SCC 35 , [2009] 2 SCR 527, R v Stellato (1993), (ON CA), 12 OR (3d) 90, 61 OAC 217, aff’d (SCC), [1994] 2 SCR 478, R v Stellato [1994] 2 SCR 478, R v McClelland, 1995 ABCA 199, 165 AR 332, R v Abel, 1999ABCA 74, 232 AR 186, leave denied [1999] SCCA No 221, and R v W(D), (SCC), [1991] 1 SCR 742, [1991] SCJ No26. [59] The defence also cites: Beatty, and in addition cites: R v Watson, 2011 ABPC 331, 514 AR 396, R v Ogertschnig, 2008ABPC 293, [2008] AJ No 1160, R v Winkler, 2008 BCPC 269, [2008] BCJ No 1804 and R v Burkitt, [1972] 6 WWR 251, [1972] MJNo 152 (Co Ct).

Analysis [60] I may only convict Mr. Dias of any of the charged offences if I am satisfied that the Crown has proved each and everyelement of that offence beyond a reasonable doubt. [61] Mr. Dias testified on his own behalf. Therefore, in addressing the question of whether the offences have been proved beyonda reasonable doubt, I will apply the approach set out by the Supreme Court of Canada in R v W(D): 1) if I believe Mr. Dias, I must acquit him; 2) if I do not believe Mr. Dias' evidence but I am left in a reasonable doubt by it, I must acquit him; 3) even if I am not left in doubt by Mr.

Dias' evidence, I must ask myself whether, on the basis of the evidence which I do accept, Iam convinced beyond a reasonable doubt by that evidence of Mr. Dias’ guilt. [62] If after considering all the evidence I am not sure that the accused committed one of the offences charged, I must find theaccused not guilty of that offence. [63] I do not believe Mr. Dias. He insisted that his inability to remember details resulted from injuries to his head sustained duringan alleged police beating at the time he was taken into custody.

However, he was nonetheless able to give detailed, almost minute self-serving evidence as to: - his inability to have his prescriptions for his depression and anxiety disorder filled as his doctor only worked to 4:00 p.m and heworked long hours and overtime - consumption of one beer at the barbeque at his sister’s place - his involvement at Duster’s Pub (where he asserted he was listening to the band and simply came to the aid of his sister)

- the manner in which he carefully and slowly left his parking place on the west side of 64 th Street - the fact that he had his stereo on and could not hear the police sirens - the manner of his ultimate surrender (at which point he says he was beaten by the police). [ 64 ] On cross-examination, the Accused stated that he thought he had worked on the day in question - he was pretty sure he had worked but could not totally remember. His assertions that he did not know that the woman screaming outside Duster’s was his sister, or that the individual he saw (Sgt. Morrison) was a police officer, are not believable.

His explanation for travelling more than 50 blocks, and not stopping until he finally realized that the police were following him, was incredible. I also totally disbelieve his evidence with respect to the manner in which he exited the parking place on 64 th Street. His assertion that he had no memory of being requested to give a breath sample is equally incredible.

Further, while the Accused asserted that he had a severe case of amnesia and loss of memory for months after being taken into custody and still has problems with his memory, the nurse ’ s observations at 5:20 a.m. at the Northeast Community Health Centre state in part: “ Alert and oriented to person place time and situation ” (medical records were introduced as an exhibit by the Accused when being examined in chief during the trial). [ 65 ] In my view, the Accused presented selective, self-serving evidence.

Given his incredible accounts of every significant aspect of the events in question, I cannot accept any of his evidence. [ 66 ] The police officers who testified presented their evidence dispassionately and in a straightforward manner. I accept the evidence of Sgt. Morrison and Cst. Newell with respect to the manner in which the Accused exited his parking place on 64 th Street. There was some disparity in the evidence of the officers who testified with respect to what transpired during the Flight, and in particular precisely what avenue the Accused was on at various times.

I am mindful, however, that people remember things differently and that perceptions may not be entirely accurate during pursuit of a vehicle. In my view, there were inconsequential inconsistences in the officers ’ testimonies regarding matters such as speed estimates. However, I am mindful that the police cruisers would have been travelling faster than the Accused at the time in an attempt to close the gap. None of the officers who testified described the Flight as a high speed chase, and their estimates varied regarding the Accused ’ s speed in this 50 km/h residential area at different points in time.

Destiny Dias estimated the Accused ’ s speed to be about 20 km/h over the speed limit at times. Traffic was light and the road surface was dry. At various times during the pursuit, the officers saw the truck weaving from side to side and failing to stop at stop signs. [ 67 ] It is clear that during the Flight the Accused drove east from Duster ’ s Pub as far as 34 th Street and then circled back and drove in a westerly direction to a point approximately three blocks from the Pub where he abandoned his vehicle and fled on foot.

In total, the Flight encompassed a distance of more than 50 blocks in a residential area. While I am cognisant that there was little traffic in this residential area during the Flight (approximately 1:30 to 2:00 a.m.), it is in my view fortunate that the Accused did not collide with another vehicle or a pedestrian given the distance travelled. [ 68 ] Those officers who were directly involved when the Accused was taken into custody deny striking or kicking the accused. There were a number of occasions prior to the arrest which might explain injuries to the Accused. Ms.

Belayneh testified that the Accused fought with customers at the Pub before the chase. She described the considerable commotion in the Pub as including chairs being knocked upside down, a table being knocked over, beverage glasses being smashed and glasses being thrown. In the course of the pursuit, the Accused had jumped over a five or six foot fence, crashed through bushes, and fallen in a drainage ditch. He may also have been hit with a flying police baton. Clearly there was a scuffle as Cst. Perry sought to subdue the Accused.

It is interesting to note that the Accused testified at trial that on leaving the truck he told Destiny: “ They will probably beat me ” . [ 69 ] Although the Accused may well have suffered some injuries during the course of the events on the evening in question, including at the time of his arrest, I accept the officers ’ evidence that the Accused was not beaten. [ 70 ] I accept the evidence of the police officers of Cst. Auger, Cst. Bulas and Cst. McConnell regarding the breath sample request.

The Accused ’ s assertion that he had no memory of a breath sample request is simply incredible, especially given the indication in the medical notes, taken very close to the relevant time, that he was alert and oriented.

[ 71 ] Having addressed these general credibility issues, I will now consider each count separately. [ 72 ] I accept Sgt. Morrison’s evidence that he had to leap to his safety to avoid being run over by the Accused when the Accused put his vehicle into reverse and accelerated backwards. Both Sgt. Morrison and Cst. Newell saw the Accused look back before putting his vehicle in reverse and accelerating. The fact that Cst. Newell did not see Sgt. Morrison knock on the side of the Accused’s vehicle is, in my view, inconsequential as I am mindful that Cst.

Newell was involved with a belligerent and intoxicated female at about the same time. I find that the Accused was aware that Sgt. Morrison was close to the truck and was directing him to stop. Although the truck lights were not on during the chase, I accept Sgt. Morrison’s evidence that the reverse lights came on and that the Accused looked back while reversing toward Sgt. Morrison. I find that the Accused intentionally attempted to strike Sgt. Morrison with his vehicle. I do not believe Mr. Dias’ account of this event, nor am I left in a reasonable doubt by it.

Based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Dias’ guilt on this count. Accordingly, I find the Accused guilty under s. 267(

a) of threatening to use a vehicle as a weapon in committing an assault upon Sgt. Morrison. [ 73 ] Whether or not the Accused’s guilty plea to criminal Flight can be sustained given his evidence at trial after entering the guilty plea is in my view academic. As stated above, I do not accept his evidence. I am, in any event, satisfied that the Crown has proved the elements of criminal flight beyond a reasonable doubt. Again, I do not believe Mr. Dias’ account of the Flight, nor am I left in a reasonable doubt by his evidence.

Based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that the Accused was driving his vehicle while it was being pursued by two police vehicles and Air One. I find that the Accused knew that he was being pursued by vehicles operated by the police, that he knew that he should stop, and that without any reasonable excuse and in order to evade the police officers he failed to stop.

I find the Accused guilty under s. 249.1(1) of failing to stop while being pursued by a peace officer. [ 74 ] I am also satisfied that the Crown has proved beyond a reasonable doubt both the actus reus and the mens rea of dangerous driving. The Accused's driving was objectively dangerous. It was also a marked departure from the standard of care that a reasonable person would observe.

I am mindful that the Flight occurred in the early morning in a residential area were there was little traffic, but in my view there is simply no time of day when a driver observing the standard of care of a reasonable person will speed through at least three stop signs and numerous yield signs over a distance of more than 50 blocks. The Accused testified that the vehicle was difficult to drive, but stated that he did not know why it was swerving during the Flight.

Whether or not he was aware that the truck had a flat rear tire, the fact that he was having difficulty steering the truck merely adds to the dangerous nature of his driving. Nothing in Mr. Dias ’ evidence raises a reasonable doubt on this charge. Based on the evidence which I do accept, I find that the Crown has proved the elements of dangerous driving beyond a reasonable doubt. I find the Accused guilty under s. 249(1)(

a) of dangerous driving. [ 75 ] With respect to the charge of failing to provide a breath sample, I accept the evidence of Cst. Auger, Cst. Bulas and Cst. McConnell, as mentioned above. I disbelieve the Accused’s evidence. Nothing in his evidence in this respect raises a reasonable doubt. I find that Cst. Bulas had reasonable grounds to demand a breath sample in all of the circumstances, including in particular her observations that the Accused’s eyes were glassy, and he was unsteady on his feet. Further, she smelled alcohol on his breath and noted that he smelled of alcohol.

I find that the Accused was afforded ample opportunity to provide a breath sample but refused to do so without reasonable excuse. Accordingly, I find him guilty under s. 254(5) of failing to comply with a breath sample demand. [ 76 ] Finally, with respect to the charge of impaired driving, Conrad J.A. for the court In R v Andrews stated: 20 The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

This is what the Supreme Court of Canada approved, not that a slight degree of impairment is to be equated to a slight degree of impairment of one's ability to drive. That would preclude a trial judge in every case from making the crucial finding of whether the accused's ability to drive was in fact impaired. ... 29 In my view the following general principles emerge in an impaired driving charge: (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 his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [ 77 ] I accept Ms. Belayneh’s evidence as to the Accused’s appearance prior to the Flight, in particular that his eyes “weren’t right” and that he and the women he was with smelled of marihuana.

I also accept the evidence of the officers who testified as to the Accused ’ s manner of driving during the Flight, including hitting a parked car, speeding, swerving and failing to stop at stop signs. I accept as truthful the observations of Cst. Bulas, Cst. Auger, and Cst. McConnell with respect to the Accused on his arrest: bloodshot eyes, flushed complexion, unsteady on his feet, smell of alcohol, uncooperative, and belligerent.

Based on all of the evidence, I conclude that the Accused ’ s manner of driving constituted a significant deviation from what could be considered to be normal conduct behind the wheel. I also conclude that he intended to assume care or control after voluntary consumption of alcohol or a drug or both which had impaired his ability to drive. Accordingly, I find the Accused guilty of impaired operation of a motor vehicle under s. 253(a). Conclusion [ 78 ] I find the Accused guilty on all five Counts.

Heard on the 29 th , 30 th and 31 st days of October and 1 st and 2 nd days of November, 2012. Dated at the City of Edmonton, Alberta this 6 th day of December, 2012. Gerald A. Verville J.C.Q.B.A. Appearances: Michelle Kai Susanne Thompson for the Crown/Respondent Alex Millman for the Accused/Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Publication Ban added to judgment.