Her Majesty the Queen - v. -, 2017 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 013 Date: February 17, 2017 Information: 35709067 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dylan Zachery Lewis Appearing: J. Claxton-Viczko For the Crown M. Bortis For the Accused JUDGMENT M.M.

BANIAK , J [ 1 ] The accused stands charged that on or about the 31 st day of May, A.D. 2016 at or near Saskatoon, Saskatchewan did: 1) without lawful excuse, store a firearm, to wit: a sawed-off 12 gauge shotgun, in a careless manner, contrary to section 86(1) of the Criminal Code ; 2) having in his possession, a weapon, to wit: a sawed-off 12 gauge shotgun, for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code ;

3) possess a firearm, to wit: a sawed-off 12 gauge shotgun, knowing that he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code ; 4) was an occupant in a motor vehicle, to wit: a GMC 1500, in which he knew there was at that time a firearm, to wit: a sawed-off 12 gauge shotgun, contrary to section 94(1) (a)(

i) of the Criminal Code ; 5) possess a loaded prohibited firearm, to wit: a sawed-off 12 gauge shotgun, not being the holder of an authorization or licence under which he may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code ; 6) possess a prohibited weapon, to wit: a sawed-off 12 gauge shotgun, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code ; 7) possession ammunition, to wit: 12 gauge shotgun shells, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code ; 8) operate a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, contrary to section 249(1) (

a) of the Criminal Code ; 9) having the care, charge or control of a motor vehicle that was involved in an accident with a vehicle at 21 st Street and Avenue S South, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name, address, contrary to section 252(1) of the Criminal Code ; 10) break and enter a place, to wit, a dwelling house situated at 429 Montreal Avenue South, and did commit therein the indictable offence of theft, contrary to section 348(1) (

b) of the Criminal Code ; and 11) commit theft of a motor vehicle, the property of Nick Rodyck, contrary to

section 333.1(1) of the Criminal Code . [ 2 ] The Crown’s first witness was Dallas Dubois. On May 31, 2016 at around 2:00 o’clock in the afternoon she, her sister and their three children were travelling to Prince Albert to attend their grandfather’s funeral. She was turning left from Clancy Drive onto Circle Drive, going north. She had a green light. She was struck by a truck which ran a red light; it was proceeding south on Circle Drive. Fortunately, neither she nor any of her passengers were seriously hurt. [ 3 ] She testified that she saw two people, a male and a female, running away from the vehicle.

In her words: A male and female running away. The male looked towards me. I could not recognize the male - too far away from me. Female wore dark clothing. She may have been native. The male was Caucasian. They looked younger - young adults. [ 4 ] Her sister, Jessie Dubois, also testified. Other than being in an accident, she was unable to provide any relevant detail of the aftermath. [ 5 ] The Crown’s third witness, Silvino Biros, was also at the intersection of Clancy Drive and Circle Drive.

He testified that a silver coloured half ton went through a red light, hit a car that was turning onto Circle Drive and then clipped his vehicle on the passenger side. He testified: I didn’t actually see the other driver . . . I didn’t observe anybody leaving the truck.

[ 6 ] The next Crown witness, Nicolas Ruston, was also in the vicinity of Clancy and Circle Drive. He testified as follows: I had a red light. A silver car was hit by a GMC which went through a red light. I ran to the car. My girlfriend called 911. She told me that two people were fleeing the scene. I turned and saw two people, a male and a female jogging away. I saw a shotgun in the truck. It also swiped a black truck. The truck driven by the driver who ran away was a beige GMC Sierra. [ 7 ] During cross-examination he acknowledged that he could not identify the driver. [ 8 ] Mr.

Austin Bosse, another witness who was near the accident scene, pretty much echoed what the previous witness stated. He observed a tan coloured truck going through a red light and colliding with a small car. The two individuals from the truck quickly departed from the scene and he saw them climbing over a fence and proceeding east from Circle Drive. He could not identify either of them: I couldn’t say much about their appearance and could not make an identification. [ 9 ] The next witness called was Nick Rodyck, who resides at 429 Montreal Avenue South, Saskatoon.

He testified that on May 31, 2016, at around 2:30 p.m.: I parked in front of the house and locked the truck. I put the keys on the step in the house. I heard a beep, the door opened and I saw my truck shoot past my window and it was gone. [ 10 ] He called 911 to report his truck stolen. About five minutes later police with a dog arrived at his house. [ 11 ] His truck, which was eventually damaged and ‘written off’ was a 1999 GMC Sierra.

He described it as burgundy in colour with a beige bottom, and in excellent condition. [ 12 ] He did not see who took his keys and stole his truck. [ 13 ] Constable Kevin Sanderson, a member of the Saskatoon Police Service, was dispatched to the Clancy Drive and Circle Drive accident. He arrived at the scene at 2:17 p.m. He noted that there were three damaged vehicles: a grey truck, plate 893 JUA; a grey car, plate 832 KCS; and a black truck, plate 898 JRR. [ 14 ] He spoke with the occupants of the car and took a statement from Dallas Dubois. He looked in the grey truck and saw a shotgun near the driver’s seat.

It was a sawed off double barrel 12 gauge shotgun (Exhibit P-2). It was loaded with two buckshot rounds in the chamber. [ 15 ] His partner and Constable Gelowitz went to conduct a canine track. [ 16 ] When asked during cross-examination if the shotgun was tested for fingerprints, or test fired to see if it was functional, Constable Sanderson answered that he was not sure. [ 17 ] Constable Jarret Gelowitz, a nine year member of the Saskatoon Police Service also testified. He is one of the members of the Saskatoon Police Service Canine Unit. He is partnered with police service dog Viper.

He was qualified as an expert in the field of human scent tracking. [ 18 ] He testified that he was the first unit at the accident scene arriving at 2:16 p.m. He checked the vehicles; observed a shotgun

in one of the trucks (plate 893 JUA) and started his dog track at 2:18 p.m. The track started at Circle Drive and Clancy, and concluded at 429 Montreal Avenue South at 2:31 p.m. Viper could not pick up any scent after this point. [ 19 ] The truck stolen from the resident at 429 Montreal Avenue South was a 1999 1500 GMC, burgundy colour, plate 236 CHA. [ 20 ] No suspects were arrested on May 31, 2016. [ 21 ] The next witness called by the Crown was Constable Ryan Shwydiuk, a twelve year member with the Saskatoon Police Service. He is assigned to the Guns and Gangs Unit.

On May 31, 2016 he was in plain clothes driving an unmarked vehicle. His partner was Constable Brown. Earlier that day (at the beginning of the shift in the morning) the Saskatoon police received a bulletin from the RCMP about an armed robbery and photos of person believed to be involved. Constable Shwydiuk testified as follows: I immediately recognized the person in the photo as being Dylan Lewis. [ 22 ] About two hours later, at 2:07 p.m., while on patrol in the vicinity of Avenue S, he spotted Dylan Lewis driving in the opposite direction towards him.

He testified that Lewis was driving a 1998 GMC 1500 pick up, tan or champagne in colour. [ 23 ] Constable Shwydiuk made a u-turn and started following this truck. Before long this truck started taking evasive action and driving erratically. At 2:09 p.m. Constable Shwydiuk abandoned the pursuit. At 2:11 p.m. he heard about a similar looking truck driving erratically at 22 nd Street and Confederation Drive. He stated: At about 2:13 or 2:14 a call came about an accident at Clancy and Circle Drive with a truck which ran a red light.

Two people fled. [ 24 ] A little later information came over the air about a house being broken into, a set of keys and a truck being stolen. [ 25 ] That evening (May 31, 2016), a special constable working with the Saskatoon Police Service received a call from an individual named Arnold Loree, who advised that he lives near Kindersley and that a few days earlier he sold the truck that was involved in the accident at Clancy and Circle Drive to a guy named “Dizzy”. [ 26 ] When Constable Shwydiuk searched the Facebook network, the picture under “Dizzy” was of Dylan Lewis. [ 27 ] At the end of his examination-in-chief, Constable Shwydiuk testified that when he saw Dylan Lewis behind the wheel of the truck he would have been six to eight feet from him.

He saw the neck tattoos and his physical description from the chest up. [ 28 ] During cross-examination, Constable Shwydiuk testified that as he was passing the accused he had an opportunity to observe him at close quarters for about three to five seconds. I saw a full face of him. I saw neck tattoos . . . his photo fresh in my mind. [ 29 ] He acknowledged that no one involved in the accident was arrested that day, that the inside of the truck was not tested for fingerprints and that anyone can open a Facebook account.

[ 30 ] Arnold Loree testified next. He had a truck, a 1998 Chevy, extended cab for sale. Towards the end of May, 2016, a friend of his called him and said that she knew of some friends who were interested in buying a truck. He drove the truck to his friend’s place, and sold it for $3,000.00 “. . . to a lady and her old man”. Most of the interaction was between him and the female. He described the male as being “tall, lots of tattoos, brush cut . . . late twenties, early thirties”. He was not certain if he could identify him. [ 31 ] After the sale was completed, Mr.

Loree went to his place to get some tools to take the licence plates off, but when he came back the couple and the truck were gone. [ 32 ] His daughter advised Mr. Loree that the truck he sold was pictured at an accident scene in Saskatoon.

He proceeded to call police in Saskatoon to advise them that he had sold the truck some four to five days earlier. [ 33 ] Asked to describe the colour of the truck, he stated “brownish with a green bottom trim - light brown, champagne almost”. [ 34 ] Asked if he knew the male’s name, he answered: “I think they called him Dizzy or Dezee”. [ 35 ] The next Crown witness was Amanda Tarling. She is the person who facilitated the meeting between Mr. Loree and the buyers of his truck.

According to her, her friend “Reece”, Reece’s friend SK and boyfriend “Dizzy” showed up at her place and stated that they were looking for a vehicle. She knew Mr. Loree had a truck for sale and she called him. [ 36 ] Reece, SK and Dizzy spent the whole day at Ms. Tarling’s place. They all went to Boston Pizza for supper. Once the truck purchase was completed, Reece and Dizzy left. She identified the accused as Reece’s boyfriend Dizzy. [ 37 ] Constable Robert Brown also testified. He is a 16 year member of the Saskatoon Police Service.

For the last five and one- half years he has been a member of the Gangs and Guns Unit. On May 31, 2016, he was partnered with Constable Shwydiuk. He also was aware of the BOLO (be on the lookout for) message circulated earlier that day. While being the passenger in the unmarked van being driven by Constable Shwydiuk, he heard his partner says “that’s Lewis”. He testified that he noticed tattoos on the driver’s neck, but was not 100% sure it was Lewis.

They made a u-turn and started following this vehicle until they were told to terminate the pursuit for public safety reasons. [ 38 ] The truck they were following had the licence pate of 865 JUA. [ 39 ] The Crown’s last witness was Angela Woodhead, who also observed the traffic accident at Clancy Drive and Circle Drive South on May 31, 2016. [ 40 ] She testified that she saw a beige truck “facing up the wrong side”. The driver said “help us”. She described the driver as having a thin build and short reddish hair. The passenger was described as a First Nations female with long hair. [ 41 ] According to Ms.

Woodhead, once the driver and passenger got out of the vehicle “they took off running towards 20 th Street”. She could not recognize the accused. Argument [ 42 ] The main issue is the identification of the accused.

[ 43 ] The Crown relies on the evidence of Constable Shwydiuk to argue that the recognition and i.d. evidence is very strong. He knew who the accused was, and earlier that day he saw a picture of the accused in an alert notice. [ 44 ] When he saw the accused driving towards him he immediately recognized the accused as Mr. Lewis. He noticed the tattoos on the accused’s neck.

His partner, Constable Brown, testified that Constable Shwydiuk immediately stated “that’s Lewis” when they passed the vehicle driven by the accused. [ 45 ] Both constables testified that the accused was driving erratically and dangerously when they were following him. The pursuit was abandoned, but several minutes later they heard over the police information system about an accident caused by an erratic driver on Circle and Clancy Drive, who ran a red light.

The suspect vehicle was described as being beige or champagne in colour, bearing Saskatchewan licence plate 893 JUA. [ 46 ] Further, Crown points to the cumulative circumstantial evidence as being quite compelling and supportive of the accused’s guilt. All witnesses testified about the same vehicle being involved in the accident. All of the witnesses testified that a male and female left the scene of the accident.

Angela Woodhead testified that she actually saw a male and female exit the vehicle and then proceed to leave the accident scene. [ 47 ] The previous owner of the truck could not identify the accused, but his friend, Amanda Tarling, identified the accused as being the boyfriend of her friend, Reece. Both Reece and her boyfriend, who went by the name “Dizzy”, purchased the truck from Ms.

Tarling’s friend. [ 48 ] An individual from Facebook known as “Dizzy” matches Dylan Lewis. [ 49 ] In short, the Crown takes the position that all charges are proven beyond a reasonable doubt. [ 50 ] Defence posits that the Crown’s case falls short of proving the accused’s guilt beyond a reasonable doubt. [ 51 ] It acknowledges that there was an accident and that two people ran away from the accident. The description of the two people was only generic. [ 52 ] Mr.

Rodyk’s vehicle was stolen shortly after the accident, but he did not see who took it. [ 53 ] The vehicle involved in the accident was previously owned by Mr. Loree, but he could not identify the accused and , moreover, there is no evidence as to who the driver was. Amanda Tarling identified the accused, but he was the only person in court. Even if the accused is the person who purchased the truck, that is not proof that he was the driver involved in the accident. Accordingly, if the Crown cannot prove who the driver of the truck was, it cannot prove who ran away and who stole Mr.

Rodyk’s vehicle. [ 54 ] As far as Constable Shwydiuk’s identification of the accused is concerned, it is characterised as being fragile and based on a fleeting glance. He only saw the accused for about three seconds. He could not describe the tattoo in detail. Constable Brown, who was in the vehicle with Constable Shwydiuk, could not identify the accused. Analysis [ 55 ] This case depends largely on eye witness testimony, but not exclusively as it also involves circumstantial evidence. I will address both in relation to this accused.

Eye witness testimony [56] Many decisions from various courts, as well as legal literature, point to the frailties of eye witness testimony and the inherentdanger that it poses. [57] Our Court of Appeal in R v Bigsky, 2006 SKCA 145, set out certain guidelines which should be considered when analysingeye witness testimony: First, did the judge instruct himself on the frailties of eye witness testimony; Second, to what extent was the eye witness testimony reviewed; Third, to what extent does proof of the Crown’s case depend on eye witness testimony only; Fourth, what is the nature of the eye witness observation, including such matters as whether the eye witness has previously known theaccused and the length and quality of the observation; Fifth, has the witness evidence been strengthened by inappropriate police procedures; and Lastly, the Court in Bigsky held that it was relevant, in the appellate context, whether the accused testified exculpating himself - also theCrown’s case depended on eye witness testimony only. [58] Since it is the Crown’s contention that the eye witness testimony is supported by circumstantial evidence, I will address thelaw as it pertains to this type of evidence. [59] Moreover, our Court of Appeal, just recently, in R v McKay, 2017 SKCA 4, stated that it is improper to assess identificationevidence piecemeal.

Rather, it is necessary to consider all of the evidence as a whole in determining identity (para 14). The Court inMcKay also held that the criminal standard of proof should not be applied to the individual pieces of evidence, but rather to the whole ofthe evidence (para 18). [60] Two recent cases considered the law relating to circumstantial evidence: R v Farmham (Rock Hard Concrete Finishers), 2016SKCA 111 and R v Villaroman, 2016 SCC 33. [61] In Villaroman, Mr.

Justice Cromwell (at paras 35 - 38) discussed the issue of whether an inference must be based on “provenfact”: [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts” see R. v. McIver, (ON CA), [1965] 2 O.R. 475, at p. 479(C.A.), aff’d without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v.

Khela, 2009 SCC 4,[2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614,14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accusedto prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue

with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferencesother than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausibletheories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence,not on speculation. [62] Courts and learned authors of The Law of Evidence in Canada, (2nd) Markham: LexisNexis, 1999) have held and stated thatcircumstantial evidence should be considered cumulatively: Each piece of evidence need not alone lead to the conclusion sought to be proved.

Pieces of evidence, each by itself insufficient, mayhowever when combined, justify the inference that the facts exist (p 41). [63] In this case, the majority of the witnesses were not able to identify the driver of the vehicle. All witnesses at the accidentscene observed a couple (male and female) running away. Ms. Woodhead actually saw the couple exit the vehicle before running away.

I find, therefore, that the couple fleeing the accident scene were in fact the occupants of the truck involved in the accident. [64] Most witnesses described the fleeing couple as a white male and an Aboriginal or First Nations female. [65] The vehicle involved in the accident, a beige or champagne coloured GMC pickup, was seen several minutes earlier byConstables Shwydiuk and Brown. It was driving erratically and they stopped following it. [66] Constable Shwydiuk testified that shortly before the accident he recognized the accused as being the driver of the pick up.

Hetestified that the accused was driving towards him on a city street. He saw him at “eye level” from five to six feet away in the middle ofthe day. He would have been looking at him for three to five seconds. He immediately stated to his partner “that’s Lewis”. There wasno hesitation or uncertainty in his voice. He noticed the tattoos on the accused’s neck, although he was unable to describe them indetail.

Constable Shwydiuk knew the accused from previous dealings, and a couple of hours earlier that day he saw the accused’spicture on a police bulletin. [67] In this case, the identification evidence is not based on a fleeting glance. The Constable knew the accused; he saw him fromclose proximity in good light and he was able to provide a good description of the accused’s appearance. The fact that he was not able todescribe the tattoos in detail is not surprising.

I looked at the accused on a number of occasions from several feet away and I would notbe able to describe the tattoos in detail. [68] I find that Constable Shwydiuk did identify the accused as the driver of the truck when they drove past each other. [69] The other witness to identify the accused was Amanda Tarling. She is the person who put her friend “Reece” and theaccused, whom she knew as “Dizzy”, in touch with her friend Mr. Arnold Loree who had a truck for sale. [70] Reece and the accused came to her place, spent the day with Ms.

Tarling and her boyfriend and in the evening they went outfor supper at a restaurant. Once the purchase transaction of the truck was completed her friend Reece and the accused departed. Sheclearly had ample opportunity to observe the accused. She described him as being of average height, white with tattoos on his neck. Shehad no hesitation in identifying the accused. Her testimony was not challenged in cross-examination.

[ 71 ] Mr. Loree testified that he sold his 1998 Chevy pickup, which was “light brown, champagne almost” in colour to a female who had dark skin and long dark hair. She was with a male who was tall, had lots of tattoos and a brush cut. [ 72 ] I find that the accused and his female companion purchased the pickup which was involved in the accident at the intersection of Circle Drive South and Clancy Drive a few days later. [ 73 ] The Canine Unit did a track from the accident scene to Mr. Rodyk’s residence at 429 Montreal Avenue South. Mr.

Rodyck testified that his truck was stolen around 2:30 p.m. from his driveway. He called 911 to report the theft and “within five minutes police came to the house with a dog”. [ 74 ] Constable Jarrett Gelowitz and his dog Viper were the first unit at the accident scene. They arrived after 2:16 p.m. Within two minutes, 2:18 p.m., he started a track which ended at Mr. Rodyck’s residence at 2:31 p.m. Police service dog Viper, who followed the scent from the accident to Mr.

Rodyk’s residence was unable to pick up any scent after that. [ 75 ] I find that the individuals who fled the accident scene are the same ones who stole Mr.

Rodyck’s truck. [ 76 ] I also find that the truck that was followed by Constables Shwydiuk and Brown, and was proceeding west on 22 nd Street West, at around 2:09 p.m., and which was reported as driving erratically at 22 nd Street and Confederation Drive at 2:11 p.m., is the same truck that was involved in the accident at Clancy and Circle at approximately 2:13 or 2:14 p.m. [ 77 ] The accused was the driver of that truck. [ 78 ] I make my findings on the fact that the identification of the accused as the driver of the fleeing vehicle which was eventually involved in the accident was not dependent solely on the eye witness testimony.

That testimony was accompanied by a significant volume of circumstantial evidence which, when considered in its totality, served to confirm the reliability of the eye witness testimony. [ 79 ] The reasonable doubt standard is an exacting standard of proof. It is not proof to an absolute certainty, or beyond any doubt [1] , but it requires a great deal of certainty. It relies to a certain degree on reason and common sense. [ 80 ] Relying on this definitive standard, the Crown must prove guilt beyond a reasonable doubt.

This burden carries with it a duty of excluding all rational conclusions alternative to guilt. [ 81 ] In this case the Crown has met their burden. All evidence points towards the accused as being guilty of the offences he is being charged with, and I so find. ____________________________ M.M. Baniak, J

[1] R v Lifchus

(1997) SCR 5 th 1 SCC (para 36)