R. v. Mielke, 2014 ONCJ 185

COURT FILE No.: 12-002157 Citation: R. v. Mielke , 2014 ONCJ 185 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRADLEY SCOTT MIELKE AND DENNIS PAUL GRATTON Before Justice Robert S. Gee Heard on September 5 th and 12, November 18 th and December 20 th , 2013 Reasons for Judgment J. Richardson ........................................................................................................ for the Crown D. McCarthy ...................................................................................... for Bradley Scott Mielke J.

Little ……….................................................................................... for Dennis Paul Gratton [ 1 ] Paul Hamilton is a dairy farmer. On October 15, 2012, two males broke into his residence located at 139 Brant County Road 18 in the County of Brant. He was outside working, and when he returned to his house he was confronted by the intruders. A physical confrontation ensued and Mr. Hamilton states he was pushed into the corner of his living room and punched in the jaw by the younger, bigger of the males, who was approximately 6’3” or 6’4”, 260 lbs. and, wearing a blue sweater.

Shortly after, the intruders fled out the front door. Mr. Hamilton grabbed his phone and followed them. When he got out of the front door he noticed a green Pontiac Montana van in his driveway. He stated the other male, not the one who punched him, was the driver. When this intruder, whom he described as the older of the two, perhaps in his late thirties, approximately 5’8”, weighing 190 lbs, with glasses and thinning hair, saw him come out with a phone, he got out of the van, picked up a soft ball sized rock and threw it at him. [ 2 ] When the rock was thrown, Mr. Hamilton stepped back into the house.

When he came back out he saw the van speeding across his lawn and exit onto County Road 18 from an adjacent driveway. He observed the make and model of the van and the last three digits of its licence plate. He phoned 9-1-1 and later, his wife, to advise her of what had happened. [ 3 ] In addition to Mr. Hamilton, the Crown called a number of witnesses, both civilian and police, that were able to provide a near constant account of the van’s movements from the time it left the Hamilton residence until it was stopped by Constable Fox of the OPP on Highway 54, not far away and not long after.

When stopped, the van was being driven by Mr. Mielke. Mr. Gratton was located several hundred metres from where the van was stopped, in close proximity to where Constable Fox had seen the van briefly stop just before he pulled it over. Neither accused testified. [ 4 ] Located inside the van was property taken during the break-in. As well, more property from the break-in was located in a culvert, and at the side of the road, where the van had stopped close to where Mr. Gratton was apprehended. [ 5 ] As a result of this incident, both Mr. Mielke and Mr.

Gratton are charged with breaking and entering the Hamilton residence and committing theft. They are also charged with possessing property stolen during the break-in. As well, they are jointly charged with possessing a GPS found inside the van that had been stolen from Natasha Hollebrandse’s vehicle on September 5, 2011. [ 6 ] Mr. Gratton is alleged to be the intruder who, during the course of the break-in, pushed Mr. Hamilton and punched him in the

jaw. As a result he is charged with a count of robbery. [7] Mr. Mielke is separately charged with a count of dangerous operation of a motor vehicle for the manner he is alleged to havepulled out of a driveway at 379 Highway 54, and as well that he committed an assault with a weapon on Mr. Hamilton for throwing therock at him. [8] The issues I must determine are whether the Crown has proven that Mr. Mielke and Mr. Gratton are the persons who broke intothe Hamilton residence and stole the recovered property. If they were I must decide if Mr. Gratton pushed and punched Mr. Hamiltonduring the break-in and if Mr.

Mielke threw the rock at Mr. Hamilton. [9] I also must decide if Mr. Mielke was driving the van when it pulled out of the driveway on Hwy 54, if this amounts to dangerousoperation of a motor vehicle. [10] Lastly, I must decide if Mr. Mielke and Mr. Gratton were in possession of Ms. Hollebrandse’s GPS when they knew it had beenstolen. [11] Although Mr. Hamilton identified Mr. Mielke and Mr.

Gratton in court as the intruders into his home that day, given that thephysical descriptions he provided were fairly general and that no post-arrest identification procedures were utilized in this case, theCrown is not relying on this identification to prove them the intruders. [12] The Crown theory is the description given by Mr. Hamilton provides some but not sufficient evidence, standing alone, to satisfyme beyond a reasonable doubt that the accused were the intruders. It is the evidence of Mr.

Hamilton describing the intruders as well asthe totality of the other circumstantial evidence that proves beyond a reasonable doubt that the two accused were the persons who brokeinto the Hamilton residence. In order to convict in a case such as this that is wholly or substantially based on circumstantial evidence, Imust be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that theaccused are guilty. See R. v.

Griffin, 2009 SCC 28 , [2009] 2 S.C.R. 42 at par 33. [13] For the reasons that follow, I am satisfied beyond a reasonable doubt that the only rational inference to be drawn from the totalityof the evidence in this case is that Mr. Mielke and Mr. Gratton were the two intruders at the Hamilton residence on October 15, 2012. [14] Mr. Hamilton described the first intruder whom he identified as Mr. Mielke as being 5’8” weighing 190 lbs with thinning hairand wearing glasses. He was also described as being the older of the two intruders. Mr.

Mielke generally fits this description. [15] The second intruder, the one who pushed and punched him, and identified by Mr. Hamilton as Mr. Gratton, was described as abig man, 6’3” or 6’4” and weighing approximately 260 lbs. In addition, Constable Bomberry of the Six Nations Police, when he tookMr. Gratton into custody on October 15, 2012, described him as a large, obese male. Although there was no direct evidence of his actualsize and weight, these descriptions of Mr.

Gratton are generally accurate. [16] Alex Schuts testified he was driving on County Rd 18 and while going past the Hamilton residence he saw the van cut across thelawn and enter the road violently and speed away. The manner in which it entered the road and drove thereafter prompted Mr. Schuts tophone 9-1-1 to report what he saw. While on the phone with the 9-1-1 operator, he followed the van on County Road 18 and as it turnedonto Hwy 54, toward Caledonia. He estimated the van was travelling at about 120 km/h in an 80 km/h zone.

He continued to follow ituntil it slowed and pulled into a business on Hwy 54 known as Agri-Tech. While in Agri-Tech Mr. Schuts said the van slowed but nevercame to a complete stop. He drove slowly past Agri-Tech and never lost sight of the van. After he drove past, he stated the van droveout of Agri-Tech very quickly and turned left back onto Hwy 54 toward Brantford, in the direction from which it had just come.

As itpulled out of Agri-Tech, he stated it cut off another vehicle that had to brake hard to avoid a collision. [17] He turned to continue following, and as he did so he lost sight of the van as it crested a hill on Hwy 54. When he reached the topof the hill, he observed Constable Fox just completing a U-turn, and proceeding after the van, and pulling it over. When he observed thevan enter the road at the Hamilton residence he stated there were two persons in it, but when stopped there was only one.

[ 18 ] Michelle Mannen was the driver of the vehicle that the van cut off as it exited Agri-Tech. She stated she came around a bend in the road and the van sped straight out of Agri-Tech directly in front of her. She had to apply her brakes hard and turn toward the ditch on the side of the road to avoid contact. She stopped on the gravel shoulder and was able to avoid entering the ditch. She stated after this the van continued down Hwy 54 at a high rate of speed.

Due to what had taken place and the risk she had been put in due to the manner the van was driven, she too intended to call the police, but, before she could do so, she also observed Constable Fox make his U-turn and stop the van. Once the van was stopped she stopped as well and reported to Constable Fox what she observed. [ 19 ] Constable Fox stated he observed the van pass him on Hwy 54 and he made his U-turn to pursue it. While doing so he stated he lost sight of the van for approximately 10-15 seconds. When he next observed it, it was just pulling away from where it had stopped at the side of Hwy 54.

He also observed, as he drove past that spot, that something was at the roadside where the van had been. When he pulled the van over several hundred metres further down, at 272 Hwy 54, Mr. Mielke was driving and was the only person in the van. Within a matter of minutes, Mr. Gratton, wearing a T-shirt and shorts, was observed by Constable Fox exiting from the ditch where he had observed the van to have stopped just up the road. [ 20 ] Carol Snively-Skoblenick was also in the vicinity of the Hamilton residence when the van made its hasty departure.

She testified it entered the roadway ahead of her and her husband and she could observe through its back window that there were two people inside. When the van turned from County Road 18 onto Hwy 54 they did not follow it any further but continued on their way toward Brantford. [ 21 ] Property from the Hamilton residence was recovered from Mr. Mielke, from inside the van and from the area on the side of the road, where Mr. Gratton was taken into custody. [ 22 ] Without detailing all the property recovered, it is sufficient to note that jewelry was found in Mr. Mielke’s pocket that Mr.

Hamilton identified as his wife’s. As well, in the console area of the van was an envelope from Frew Farms with a receipt in the name of Scott Hamilton, Paul Hamilton’s brother, along with several hundred dollars in cash from a farm transaction that had recently taken place. [ 23 ] Where Constable Fox saw the van stopped, just before he pulled it over, was at 280 Hwy 54. There is a driveway at this location with a culvert that runs underneath it.

Inside this culvert was located a pillowcase that contained more property from the Hamilton residence including more jewelry, a laptop computer and Paul Hamilton’s wallet. Also inside the culvert was a blue pullover sweater with a Toronto Maple Leaf logo on it. This pullover was described as very large. Constable Gallant photographed it on a boardroom table at the police detachment that he testified was about 4.5 feet wide. He stated that when laid out the pullover was almost as wide as the table. [ 24 ] At the side of the road was a black strong-box and a knapsack.

Inside the knapsack were a cheque and other paperwork in Mr. Gratton’s name. As noted earlier, Mr. Gratton was observed coming out of the ditch and was apprehended in very close proximity to this property. In addition, when Officer Bomberry asked his name he testified he identified himself as Mr. Mielke. Defence counsel suggested to Officer Bomberry that he in fact stated he was waiting for Mr. Mielke. Officer Bomberry did not agree with this suggestion, and in any event, whether he identified himself as Mr. Mielke or said he was waiting for Mr. Mielke, it is further evidence of a connection between Mr.

Gratton and Mr. Mielke at the time. [ 25 ] To review, Mr. Hamilton observed the intruders leaving his residence in the van. From the time it left his property, it was observed continuously, save for one 10-15 second period, before Constable Fox completed his U-turn and headed after it. During this 10-15 second window, the van stopped. Mr. Gratton, personal property of his, property from the break-in and a very large blue sweater were all found at this spot. Mr. Mielke was stopped several hundred metres up the road, alone in the van with property from the break-in on his person and in the van.

None of the witnesses who observed the van after it left the Hamilton’s ever saw more than two persons in it. This being the case, I am satisfied beyond a reasonable doubt the only rational inference to be drawn from these circumstances is that Mr. Mielke and Mr. Gratton were the two intruders Mr. Hamilton encountered, and that they fled together in the van. Mr. Mielke drove and took advantage of the first window of opportunity he had to drop off Mr. Gratton and some of the property to try to cover their tracks and make their escape. [ 26 ] Counsel for Mr.

Mielke suggests there are other rational inferences that could be drawn from the evidence and as such I ought not to be satisfied beyond a reasonable doubt that Mr. Mielke was one of the intruders. He suggests that given the general description provided by Mr. Hamilton, it is possible Mr. Mielke was not in the residence at all but remained in the van, or perhaps was picked up somewhere after.

As well, he suggests that at some point, perhaps at Agri-Tech, the actual intruders could have left the van unnoticed and as well at some point, either while driving or again perhaps while at Agri-Tech, a switch of drivers was made.

[27] Based on the totality of the evidence, these suggestions are nothing more than mere speculation and would not be rationalinferences available on the evidence. These other unknown persons in the van would have had to have been concealing themselves fromthe witnesses and would have had to have been able to exit the moving van in Agri-Tech without being observed by Mr. Schuts eventhough he did not take his eyes off it. The driver switch would have had to occur at the same time, again unnoticed or if not then, whileit was travelling at 120 km/h, again unnoticed by the witnesses, which is unlikely in the extreme.

Alternatively these other personswould have had to exit the van and the driver switch would have had to all occur in the 10-15 second window when stopped without anyevidence of their presence being detected. [28] Counsel for Mr. Gratton also suggest that due to the general description of the intruders given by Mr. Hamilton, and that nopersonal property of Mr. Gratton’s was found in the van, I ought not to be satisfied beyond a reasonable doubt that he was one of theintruders.

However I would note that when Constable Fox passed the spot where the van had stopped, he saw items at the side of theroad that turned out to contain personal property of Mr. Gratton. At the time he passed, Mr. Gratton was not standing near this personalproperty. Constable Fox first observed Mr. Gratton coming out of the ditch where this property was located. When he was taken intocustody, he was wet and had grass stains on him. What I conclude from this is that when Constable Fox passed, Mr.

Gratton was hidingin a ditch, in a rural part of Brant County in close proximity to where was found not just his personal property but a large blue sweaterthat the evidence suggests would fit him, as well as property stolen from the break-in that had occurred just minutes before, at theHamilton residence. Then when first spoken to by police he admits to a connection to Mr. Mielke who is stopped just up the road withother property from the break-in. In these circumstances as stated earlier based on the totality of the evidence I am satisfied Mr. Grattonwas the larger of the two intruders described by Mr.

Hamilton, and he left in the van with Mr. Mielke, and was in it until dropped off atthe side of Hwy 54 where he and the property were located. [29] Having come to this conclusion, findings of guilt will be made in relation to count one, where Mr. Mielke and Mr. Gratton arejointly charged with break and enter and commit theft, as well as count two where they are jointly charged with possession of propertystolen from the Hamilton’s. [30] Count four charges Mr. Gratton with robbery. Since I am satisfied that Mr.

Gratton was the larger of the two intruders and Mr.Hamilton testified this person pushed him and punched him in the jaw during the break-in and theft, Mr. Gratton will be found guilty ofthis charge as well. [31] Count five charges Mr. Mielke with dangerous operation of a motor vehicle for the manner in which he pulled out of a drivewayat 379 Hwy 54. Based on my analysis of the totality of the evidence, I am satisfied beyond a reasonable doubt Mr. Mielke was the driverof the van from the time it left the Hamilton’s until it was stopped by Constable Fox. [32] Counsel for Mr.

Mielke pointed out that the Crown has particularized the dangerous operation to the incident where the vanpulled out of 379 Hwy 54, not the entirety of the driving from the time the van left the Hamilton residence until it was stopped byConstable Fox. Counsel is correct in this regard. [33] He also points out there was no evidence where 379 Hwy 54 was, so I am unable to conclude what act of driving the Crownalleges was dangerous.

The Crown has submitted that 379 Hwy 54 is Agri-Tech. [34] There does not appear to have been any evidence directly connecting 379 Hwy 54 to Agri-Tech, however based on all theevidence I am satisfied that the driveway referred to in count five as 379 Hwy 54 is that of Agri-Tech. I come to this conclusion basedon several factors. First, when stopped, Mr. Mielke was travelling in the van away from Agri-Tech. Constable Fox stopped him at 272Hwy 54. Mr. Gratton was located at 280 Hwy 54.

Given how the address numbers were progressing, 379 Hwy 54 would be furtherback along the path the van had travelled, in the direction of Agri-Tech. As well, the evidence indicated Agri-Tech was on the otherside of the road from where Mr. Gratton was found and the van was stopped. This would mean Agri-Tech would have an odd numberedaddress. Lastly, the evidence of the witnesses following the van confirms the driveway of Agri-Tech is the only driveway the van pulledout of on Hwy 54.

Based on all this, I am satisfied the driveway referred to in count five is Agri-Tech. [35] The next issue is whether pulling out from Agri-Tech as he did, causing Ms. Mannen to take evasive action, to avoid a collision,amounts to dangerous operation of the van. In order to attract criminal liability when viewed objectively, the manner of driving must bedangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount oftraffic that at the time is or might reasonably be expected to be on such place.

If satisfied when viewed objectively based on this test thatthe accused drove in a manner dangerous to the public, I must still be satisfied the accused had the requisite mens rea in thecircumstances. In that regard, I must be satisfied on the basis of all the evidence, including evidence about the accused's actual state ofmind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in theaccused's circumstances. See R. v. Hundal, (SCC), [1993] 1 S.C.R. 867 and R. v. Beatty, 2008 SCC 5 ,[2008] 1 S.C.R. 49.

[ 36 ] In this case, I am satisfied that pulling out of Agri-Tech as he did was objectively dangerous to the public. Mr. Mielke pulled directly in front of Ms. Mannen onto a roadway with an 80 km/h speed limit. Ms. Mannen was required to take sudden and significant evasive action, including applying her brakes hard, causing her to leave the paved portion of the roadway and nearly enter the ditch, in order to avoid a collision with Mr. Mielke. [ 37 ] In turning to whether Mr. Mielke had the requisite mens rea I am satisfied he did.

Although the allegation of dangerous driving has been particularized to the act of pulling out from the driveway of Agri-Tech, in order to assess Mr. Mielke’s state of mind when he did so, I am entitled to consider the entirety of the evidence, including his driving immediately before and after. In doing so, I am satisfied he intentionally drove out onto Hwy 54 into the path of an oncoming vehicle in a dangerous manner for the purpose of facilitating his escape from a serious crime he had recently committed. I find he was aware he was being followed by Mr.

Schuts and he did this manoeuvre at Agri-Tech in order to attempt to evade him and the police. [ 38 ] As such, a finding of guilt will be made in relation to count five against Mr. Mielke. [ 39 ] Count six alleges Mr. Mielke committed an assault with a weapon on Mr. Hamilton when he threw the rock at him outside his house. Counsel for Mr. Mielke submits I ought to have some reasonable doubt on this charge since although Mr. Hamilton testified he observed Mr. Mielke pick up a rock and make a throwing motion, he stepped back in the house and never actually observed Mr. Mielke make the throw. However, Mr.

Hamilton saw Mr. Mielke get out of the van, pick up a rock, and start his throwing motion before ducking back into the house. This evidence, combined with the fact Mr. Hamilton later found a rock on the roof of his house satisfies me beyond a reasonable doubt that Mr. Mielke did in fact throw it, and as such a finding of guilt will be made in relation to this charge as well. [ 40 ] That only leaves count three where both Mr. Mielke and Mr. Gratton are charged with possessing Ms. Hollebrandse’s GPS.

Given that this item was stolen from her over a year earlier, it is small in size and easily transferable and that no other item stolen from Ms. Hollebrandse was found, I am not satisfied that the Crown has proven beyond a reasonable doubt that either Mr. Mielke or Mr. Gratton had the requisite knowledge of the stolen nature of the GPS and as such that charge will be dismissed against both accused. Dated at Brantford, Ontario This 11 th day of April, 2014 The Honourable Mr. Justice R.S. Gee