R v Williams, 2016 ABQB 327

Court of Queen ’ s Bench of Alberta Citation: R v Williams, 2016 ABQB 327 Date: 20160615 Docket: 150640324S1 Registry: St. Paul Between: Her Majesty the Queen Appellant - and - Jeremy Ronald Williams Respondent ______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn ______________________________________________________ Introduction [ 1 ] This is a Crown

summary conviction appeal of the accused’s acquittal for criminal flight under s. 249.1(1) of the Criminal Code of Canada RSC 1985, c C-46. The appeal was allowed, with these written reasons to follow. [ 2 ] Mr. Williams was charged that he: ... did operate a motor vehicle while being pursued by a peace officer operating a motor vehicle, and did, without lawful excuse and in order to evade the peace officer, fail to stop as soon as was reasonable in the circumstances... [ 3 ] The facts are that on May 30, 2015 Mr.

Williams was detained in a Lac La Biche alleyway for impaired operation of a motor vehicle (in relation to which Mr. Williams pleaded guilty to the offence of refusing to comply with a breath demand). In the course of that detention the investigating officer directed Mr. Williams to turn off his motor vehicle. In response to this direction Mr. Williams looked at the officer but did not respond. The officer told him a second time that he was being detained and again directed him to turn off his motor vehicle. At that point Mr. Williams put his vehicle in gear and drove away at a high rate of speed.

[4] The officer took up pursuit for a period of some six minutes during which she observed Mr. Williams to be drivingerratically, at times accelerating to 80-100 kph in 50-70 kph zones. Early in the pursuit the officer activated her emergency lights, thenshut them off to avoid a chase scenario on what was a fairly busy summer evening. At least before Mr. Williams entered a residentialneighbourhood, the officer had no idea of his intended destination. [5] As it turns out, Mr. Williams ended up driving to a private roadway leading to his family home.

There he exited his vehicleand was immediately placed under arrest. He told the officer at that time that he had intended to drive to his residence to bid his motherfarewell as he anticipated a long period of detention. This explanation was consistent with hearsay 911 reports received by others in theRCMP detachment. [6] In acquitting Mr. Williams under s. 249.1(1), the trial judge identified the core issue as whether he had the specific intent toevade the investigating officer. [7] The trial judge found that the Crown had failed to prove Mr.

Williams had the necessary specific intent to evade police.Although the accused did not testify at trial, the trial judge relied on evidence of Mr. Williams’ actual state of mind coming out of hisstatements to the investigating officer, and statements to a 911 operator. That evidence raised a reasonable doubt as to whether anintention to evade police was the only reason Mr. Williams drove to his residence. Although there is no direct finding of what his otherpurpose may have been, the inference appears to be that Mr.

Williams’ purpose was to see his mother before what he believed would bea period of further detention. The core of the trial judge’s reasoning is as follows: I am satisfied that Mr. Williams knew he had to stop for police, knew he was being followed by police, and knew that he would bedetained as soon as he reached his mother’s residence. I am further satisfied that Mr. Williams did not have a reasonable excuse for hisactions. I am not satisfied, however, on a criminal standard that Mr.

Williams had no other purpose for his actions other than to evadepolice; that is to say, I am not satisfied that he had the specific intent ‘to evade’ Constable Leslie. His comments to third parties pre-police investigation and post-arrest, as reported by Constable Leslie, raise a reasonable doubt. [8] The trial judge expanded on her oral reasons in a written decision reported at 2015 ABPC 221 .

The authorities of R vRoberts, 2005 ABCA 11 and R v Kulchisky, 2007 ABCA 110 were cited for the proposition that “proof of specific mens rea to evade isan essential element of the offence [under s. 249.1(1)]”. (at para 36). The trial judge went on to say, at paras 39-44 in the subsequentwritten decision: [39] Mr. Williams’ comments to third parties as reported in the 911 calls, and to Cst.

Lesley post-arrest, taken together with his drivingpattern, which was neither ‘elusive’ nor of a kind as to suggest that he was trying to ‘escape’, raise a reasonable doubt as to whether Mr.Williams had the specific intent to ‘evade’ Cst. Lesley. [40] In reaching this decision, I am mindful that police officers and the public are often at risk in circumstances where a pursuit isunderway, and that there is an understandable desire to see that individuals who engage in flight be called to account for their actions. [41] I am also mindful that to police and lay observers, it might appear that an offence under this

section would be sufficiently made outon proof of the first of the six elements enumerated by the Court of Appeal in Kulchisky. [42] To put it succinctly, when an individual is operating a motor vehicle knowing that he is being pursued by a police officer in amarked police vehicle, and fails, without reasonable excuse, to stop as soon as is reasonable in the circumstances, as in the case of Mr.Williams, it would seem that an intention to evade the police (the mens rea of the offence) could reasonably be inferred.

In suchcircumstances, the offence would be characterized as a ‘general intent’ offence and proof of ‘specific intent’ would not be required.

Ifthis were the test, the Crown would have discharged its burden of proof beyond a reasonable doubt, and the Court’s task in determiningguilt or innocence would be made considerably less onerous. [43] However, Parliament has determined that the inquiry must go beyond this, and has required proof of the essential element ofspecific mens rea before a conviction may be entered for this offence: the Crown must prove beyond a reasonable doubt that the Accusedfailed to stop “in order to evade the peace officer.” [44] That being the case, and having found that the Crown has failed to prove the essential specific mens rea element of the offencebeyond a reasonable doubt, I am compelled to acquit Mr.

Williams of the offence. [9] I respectfully disagree with the trial judge, and find that she erred in law, in concluding that the mens rea in ‘failing to stop inorder to evade the peace officer’ requires proof beyond a reasonable doubt of a specific as distinct from a general intent. Standard of review [10] The standard of review is correctness: R v Thivierge, 2010 ABQB 29 at paras 11-12: R v Wolbeck, 2010 ABCA 65 at paras9-10.

Analysis [11] The court in R v Gunn, 1997 ABCA 35 at paras 39-44, citing Sopinka J.’s reasons in R v Daviault, (SCC),[1994] 3 SCR 63, amongst other authorities, noted that the policy underlying an offence must be considered when classifying it as onerequiring general or specific intent. [12] The policy, or purpose underlying s. 249.1(1) is to address the potentially dangerous situations that may arise when a motoristattempts to evade a peace officer acting in the line of duty: R v R.Z, 2008 SKQB 313 . It is intended to protect the public and the

police when a person operating a motor vehicle being pursued by police fails to stop as soon as is reasonable: R v Breton, 2004 ABCA391 at para 8. Likewise, R v Roberts, 2015 ABCA 11 at paras 84-97. [13] The elements of the s. 259.1(1) offence are set out by the leading and often-followed authority of R v Kulchisky, 2007 ABCA110 at paragraph 4: (

a) The accused must be operating a motor vehicle (

b) The peace officer must be pursuing the accuse (

c) The evidence must establish that the accused knows a peace officer is in pursuit (

d) The peace officer must be operating a motor vehicle (

e) The accused must fail to stop his vehicle as soon as reasonable in the circumstances (

f) The accused must have no reasonable excuse for his failure to stop (

g) The accused must fail to stop in order to evade the peace officer [14] The Roberts case confirms that criminal flight is a full mens rea offence. Recklessness alone does not suffice to convict. Asthe court in Roberts stated, at para 92: Though this offence has some elements of great carelessness or recklessness, they do not suffice to convict. Deliberate illegal evasion ofthe police is also necessary under s. 249.1.

One cannot commit this offence without choosing to do so. [15] The court in Kulchisky says more about the phrase “in order to evade”, at paras 9-10: [9] The Appellant’s further argument is premised on the mens rea of the offence with a focus upon the requirement that the accusedmust fail to stop “in order to evade the peace officer”. The Appellant submits, relying on R v Roberts, 2005 ABCA 11 , thatdeliberate illegal evasion of the police is a condition precedent for conviction. [10] To evade, in our view, equates with an attempt to elude or get away from.

The motive for evasion, assuming the absence of areasonable excuse, is of no moment. If the intent is “to get away”, say, to avoid an argument with the pursuing police officer and to seekout another, the trial judge will have to evaluate whether, in the light of all of the evidence, that amounts to a reasonable excuse. Thejudgment below, read in its entirety, makes clear that the trial judge disbelieved the Appellant’s explanation.

The conviction,accordingly, with respect to that count, is also sustained. [emphasis added] [16] The relevance of motive, in the classification of offences as requiring specific as distinct from general intent, is of long-standing. The court in Gunn said this, at para. 43: [43] Justice Sopinka said (at p. 123) that in general intent offences, “[p]roof of intent is usually inferred from the commission of the acton the basis of the principle that a person intends the natural consequences of his or her act”.

He noted (at p. 123) that specific intentoffences require a mental element beyond that of general intent offences: “the formation of further ulterior motives and purposes” (citingMcIntyre J. in R v Bernard, (SCC), [1988] 2 S.C.R. 833 at 880). [17] At issue in Gunn was whether liability under s. 129(

a) of the Criminal Code requires a general as distinct from a specificintent, in the sense of “the formation of a further ulterior motive or purpose” (at para 51). The court found, on the basis of the nature ofs. 129(1), its purpose, policy, and the case law, that only a general intent is required. [18] In the case on appeal, it will be remembered that the trial judge found Mr. Williams had no reasonable excuse for failing toabide by the investigating officer’s direction. Mr. Williams’ wish to see his mother before being further detained was not a reasonableexcuse under s. 249.1(1).

But for the trial judge’s finding on the need for further proof of the accused’s specific intent, she would clearlyhave convicted Mr. Williams of the offence now on appeal. [19] If Mr. Williams’ wish to see his mother is not a reasonable excuse under s. 249.1(1), then it can only go to the subjectivereason, or motive, for his decision to evade police. As noted above, Kulchisky is binding authority that the motive for such evasion is ofno moment. [20] None of this is to say that a mens rea of intending to evade a peace officer need not be proven by the Crown.

It is to sayhowever that the mens rea is established by proof beyond a reasonable doubt that the accused intended to evade; there is no need toprove anything further – outside of the ‘reasonable excuse’ element – no need to prove or inquire into an accused’s motive or purpose orsubjective reasons for manifestly intending not to stop as soon as was reasonable in the circumstances in the face of a peace officer’sdirection to do so. [21] As to the meaning of “evade”, the court in Gunn at para 10 equated it straightforwardly to an “attempt to elude or get awayfrom”.

Again, the whys and the wherefores behind the intentional evasion are irrelevant, as is whether the evasion was meant only to betemporary (as can perhaps be inferred on the facts of Mr. Williams’ case), except again arguably as it relates to the element of areasonable excuse. Conclusion [22] To paraphrase the reasoning in Gunn, on the basis of the nature of s. 249.1(1), its purpose, policy, and the case law, a general

intent alone is required. The trial judge erred in concluding otherwise. But for that conclusion, the trial judge clearly would have convicted Mr. Williams. Accordingly the appeal is allowed, and a conviction entered. Heard and decided orally in St. Paul, Alberta on the 4 th day of January, 2016. These written reasons dated at the City of Edmonton, Alberta this 15 th day of June, 2016. Peter Michalyshyn J.C.Q.B.A. Appearances: Anthony Oliver Alberta Justice for the Crown Jeremy Williams Appeared on his own behalf for the Accused