Her Majesty the Queen - v. -, 2013 SKPC 201

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 201 Date: December 13, 2013 Information: 30713597 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shane Michael Longman Appearing: Ms. C. Choi For the Crown Mr. C. Demens For the Accused TRIAL DECISION M. HINDS , J INTRODUCTION [ 1 ] Shane Michael Longman is charged with three offences arising from an incident that occurred on September 8, 2012 in Regina, Saskatchewan. Those offences include: (1) operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code .

(2) Being bound by a probation order made by a Judge of the Provincial Court of Saskatchewan on May 4, 2011, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall keep the peace and be of good behaviour, contrary to

section

733.1(1) of the Criminal Code of Canada.

(3) Operate a motor vehicle while being pursued by a peace officer operating a motor vehicle and did fail, without lawful excuse and in order to evade the peace officer, to stop the motor vehicle as soon as was reasonable in the circumstance, contrary to

section 249.1(1) of the Criminal Code . [ 2 ] At the onset of the trial the Crown filed two exhibits with the consent of the defence. Exhibit P-1 is a probation order respecting Shane Longman. On May 4, 2011, Judge L. Halliday of the Provincial Court of Saskatchewan imposed a probation order for a term of 20 months. One of the conditions of that order was that Shane Longman was to keep the peace and be of good behaviour. P-2 is a Certificate of Disqualification respecting Shane Longman. On December 14, 2011, Judge B.D. Henning of the Provincial Court of Saskatchewan issued an order pursuant to

section 259 of the Criminal Code prohibiting Shane M. Longman from driving a motor vehicle in Canada at all times for a period of 3 years. [ 3 ] In the early morning hours of September 8, 2012, Regina Police Service Constables Tyrell Diebert and his partner Marcus Simons were in an unmarked patrol car working on traffic safety matters near the intersection of Broad Street and 1 st Avenue in the City of Regina.

In particular the two officers were situated on 1 st Avenue a short distance from Broad Street for the purpose of observing the behaviour of motorists who came upon a temporary three way stop at the intersection. Both officers were wearing their police uniforms. Constable Simons drove the police vehicle. Constable Diebert was in the passenger seat. [ 4 ] At approximately 12:15 a.m., both officers observed a white Pontiac Grand Am motor vehicle equipped with distinct silver faced and black sided tire rims pass through the intersection.

Both officers were familiar with this particular vehicle and had information that Shane Longman had driven this vehicle in the past, despite being disqualified from driving. The officers also testified that they were aware that past police attempts to stop the white Pontiac Grand Am and arrest Shane Longman for driving while disqualified were unsuccessful as Mr. Longman would speed away from police.

The officers further testified that police policy prevented police from engaging in a pursuit of such speeding vehicles through the streets of Regina. [ 5 ] While neither officer had recently had personal dealings with Shane Longman they testified that they were familiar with him from police photographs of Mr. Longman. [ 6 ] Constable Simons drove the unmarked patrol car up alongside the white Pontiac Grand Am motor vehicle for the purpose of identifying the driver of the vehicle. Both officers testified that they recognized the driver of the Pontiac Grand Am to be Shane Longman.

After identifying the driver to be Mr. Longman, Constable Simons slowed the police vehicle, pulled in the lane of traffic behind the Pontiac Grand Am and activated the police emergency lights for the purpose of stopping the vehicle and dealing with Mr. Longman. The driver of the white Grand Am pulled over to the side of the road and stopped. Once the unmarked police vehicle was stopped, Constable Diebert began to exit the vehicle. As this point in time, the driver of the white Garand Am motor vehicle drove away at a high rate of speed.

The officers adhered to Regina Police Service policy and did not pursue the vehicle. [ 7 ] The defence did not call any evidence at trial. ISSUES [ 8 ] There are two issues at trial. A. Identity. Has the Crown proved beyond a reasonable doubt that the accused was the driver of the white Grand Am motor vehicle? B. Evade Police. Has the Crown proved the elements of the offence of evade police, contrary to

section 249.1(1) of the Criminal Code beyond a reasonable doubt? ANALYSIS

Identity [ 9 ] I am mindful of the case law which clearly sets out the frailties of eyewitness testimony and the need to test its reliability. This case law is set out in great detail by Madam Justice Jackson of the Saskatchewan Court of Appeal in R. v. Bigsky , [2006] S.J. No. 801 and by Judge Whelan of the Provincial Court of Saskatchewan in R. v. Friesen , [2005] S.J. No. 417 . [ 10 ] In this case I am satisfied that the Crown has proven beyond a reasonable doubt that Shane Longman was the driver of the white Pontiac Grand AM motor vehicle. Both officers were familiar with Mr.

Longman and identified him as being the driver of the white Pontiac Grand Am in the early morning hours of September 8, 2012. Mr. Longman was prohibited from driving a motor vehicle and was on probation on September 8, 2012. Accordingly, I find the accused guilty of count 1 (operate a motor vehicle while disqualified) and count 2 (breach of the probation). Evade Police [ 11 ] In this case the police officers candidly admitted that after bringing the vehicle operated by Mr. Longman to an initial stop, they did not pursue Mr. Longman when he made his high speed get away.

The police adhered to the police policy of not engaging in a high speed pursuit. I commend them for their actions in this regard. [ 12 ]

Section 249.1 of the Criminal Code reads as follows: 249.1

(1) Everyone commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as reasonable in the circumstances. [ 13 ] In R. v. Kagayalingam , 2006 ONCJ 402 , the accused was involved in a collision. The accused was driving a vehicle and tried to stop at a red light. The accused did not stop at a red light and slid into an intersection and struck another car.

He stayed at the intersection for a few seconds and then left because he had been drinking and was nervous about being investigated by the police. The police caught up with the accused in a patrol car. The police sounded an air horn and activated emergency lights. The police followed the accused for .9 kilometres at a speed of 40 to 50 kmph. The police chose to remain well back of the accused’s car throughout and could have caught up with the accused if desired. The accused subsequently stopped his vehicle. [ 14 ] In R. v.

Kagayalingam , supra , Lipson J. had occasion to consider whether the police were engaged in a “pursuit” within the meaning of

section 249.1 . He stated as follows at paragraph 38: [38] Counsel were unable to find any judicial

interpretation of the term “pursuit” as it is used in the section. The Canadian Oxford Dictionary defines the verb “pursue” as “to follow with the intent to overtake”. Upon consideration of all of the evidence, it seems to me that at the time the police car was following Mr. Kagayalingam, a genuine pursuit within the mean and purpose of the

section was not yet taking place. I do not equate “active following”, to use the words of P.C. Rauch, as synonymous with pursuit. I have reasonable doubt as to whether the officers were engaged in a pursuit in this case. [ 15 ] In R.Z. v. Her Majesty the Queen , 2008 SKQB at paragraph 26, Justice Ryan-Froslie, as she was then, upheld the definition of “pursuit” set out in R. v. Kagayalingam , supra . [ 16 ] In this case, I am unable to conclude that after Constables Diebert and Simons stopped their patrol car they followed Mr. Longman with the intent to overtake him. The facts reveal quite the opposite.

Constable Simons quite clearly testified that he “absolutely did not pursue Mr. Longman after the initial stop”. The officers followed a police policy not to pursue. It appears this was a policy known to Mr. Longman and which he took advantage of. Having said that, I hereby acquit Mr. Longman of count #3 (evade

police).

Summary [ 17 ] I find the accused guilty of operating a motor vehicle while disqualified (count 1) and breach the condition of probation to keep the peace and be of good behaviour (count 2). I find the accused is not guilty of evading the police (count 3). ________________________________ M. Hinds, J