Her Majesty the Queen - v. -, 2017 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 063 Date: June 29, 2017 Information: 38010355 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gary Michael Gustafson Appearing: Mr. T. O'Hara For the Crown Ms. C. Kaiser-Derrick For the Accused DECISION D.C. SCOTT J [ 1 ] The Crown charged the accused Gary Michael Gustafson that on July 24, 2016: 1) he operated a motor vehicle in a dangerous manner, contrary to section 249(1) (

a) of the Criminal Code ; 2) while operating a motor vehicle being pursued by a peace officer, he failed to stop in order to evade the peace officer, contrary to

section 249.1(1) of the Criminal Code ; and, 3) he operated a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code .

[ 2 ] Mr. Gustafson filed a Charter application alleging that his

section 7 right to make full answer and defence was breached because potential video evidence was unavailable and therefore could not be disclosed. [ 3 ] Further, he submits that the Crown has failed to prove beyond a reasonable doubt that he was the driver of the motor vehicle. [ 4 ] The Crown called Cst. William Trelnuk and a civilian witness, Mr. Binh Tran, on the Charter voir dire , and the Crown sought to have their testimony applied to the trial proper.

The defence produced a series of written communications between defence and the Crown with respect to disclosure, which was admitted on the voir dire by consent. The defence also called Mr. Gustafson and Sgt. Kelly Olafson as witnesses in the trial proper. Other documentary evidence introduced by the Crown was admitted by consent.

Summary of Evidence Constable William Trelnuk [ 5 ] Cst. Trelnuk testified that on July 24, 2016 at approximately 12:39 p.m., he was on duty, enforcing the speed limit at Preston Avenue and College Drive in Saskatoon. He observed a red motorcycle approach the stop light and as it did, its rider skipped his feet off the ground and began doing brake stands, causing the rear tires to spin and smoke. [ 6 ] As the motorcycle proceeded in the right lane, the officer activated his emergency lights and siren to perform a traffic stop.

The officer noted the motorcycle began to “strongly accelerate”, reaching 94 kilometres per hour. The motorcycle drove between two vehicles, which were in different lanes but in close proximity, no more than one-half to one full car length apart. In other words, the motorcycle cut between the two vehicles without sufficient space to maneuver. The officer described this move as extremely unsafe. [ 7 ] The officer noted the driver was wearing tan work boots, jeans, a tan coat with black highlights, and a black, closed-face helmet.

The officer acknowledged he did not see the face of the driver and that, although the motorcycle passed directly beside him, his observation of the driver was brief. [ 8 ] The officer identified the motorcycle as a 1984 Suzuki, bearing Saskatchewan licence plate 401 KR.

The officer aborted the pursuit after 10 to 15 seconds, while still on Preston Avenue. [ 9 ] He checked CPIC and Saskatchewan Government Insurance (SGI) databases, determining the motorcycle was registered to Gary Gustafson, 3020 – 14 th Street East, Saskatoon. [ 10 ] At 12:50 p.m., the officer went to that address, but there was no answer at the door. At 1:05 p.m., the accused arrived home, on foot. He was wearing a black skullcap, green shirt tucked into jeans and tan boots. He was not wearing a tan jacket nor did he have with him a motorcycle helmet.

The officer testified that the individual arriving at the residence was “without a doubt” the same person as in the photograph he had viewed.

[ 11 ] The officer asked Mr. Gustafson, who smelled of alcohol, to accompany him to the patrol car where he made an ASD demand. The test registered a “fail” result. The accused was detained for dangerous driving, evading a peace officer, prohibited driving, and impaired driving. [ 12 ] While searching the accused incidental to arrest, the officer located a key (Exhibit P-1) on a key ring. The officer also seized Mr. Gustafson’s tan boots (Exhibit P-2). The officer noted black markings on the boots consistent with the use of a motorcycle’s gear shifter. [ 13 ] Cst.

Trelnuk called the canine unit to the scene to track the accused’s steps to determine where he had been, and either to find the motorcycle or disprove he was the operator. Cst. Olafson of the canine unit attempted to locate the accused’s track, but was unable to do so. [ 14 ] Cst. Smith located the motorcycle in a strip mall parking lot near Acadia Drive. Cst. Trelnuk went to the parking lot and determined the motorcycle was the same as the one he had observed – a red Suzuki motorcycle with the licence plate 401 KR. At 1:49 p.m., Cst Trelnuk used the key found on Mr.

Gustafson’s person to power up and turn on the “lights and everything” on the motorcycle in the parking lot. [ 15 ] At 1:52 p.m., Cst. Trelnuk went into the convenience store in the same strip mall. The motorcycle was parked two to three stalls from the store which was located on Acadia Drive. According to the officer, that location was a 10 to 15 minute walk from the accused’s residence. [ 16 ] The officer spoke with the owner of the store, Mr. Tran, and viewed the in-store video with Mr. Tran. The time stamp on the video read 01:09:16 p.m.

According to the officer, the camera was directed at the till and the video that had been captured was clear. The officer testified that the video showed Mr. Gustafson. He was wearing a tan “ICON” brand jacket with black trim. [ 17 ] Cst. Trelnuk asked the tech crime unit to procure the video. He was later informed that they were not able to do so, but the officer did not know the reason for that. Binh Tran [ 18 ] Mr. Tran is the owner of the College Park convenience store located on Acadia Drive.

He testified the accused is a regular customer in his store, and was introduced to him, by a friend, as “Terry”. [ 19 ] Mr. Tran testified that on July 24, 2016, the accused came into his store between approximately 11:30 a.m. and 12:30 p.m. He recalled the time because his wife had brought lunch for him. [ 20 ] He thought the accused was wearing long pants and a leather jacket, perhaps black, but he was uncertain of the colour. He was sure the accused was wearing a helmet, which he took off, when he bought cigarettes. [ 21 ] Mr. Tran saw the accused’s red motorcycle in the parking lot outside of the store. He

testified that the accused asked him to help lift up the motorcycle, although what this meant was not explained in Court. According to Mr. Tran, the accused said he would return for the motorcycle later and he left on foot. [ 22 ] The police arrived at the store approximately one-half hour to one hour later and asked if he had seen anyone ride the motorcycle parked outside of his store. [ 23 ] At that time, Mr. Tran watched the store video, which was two to three minutes in length, with the officer. The officer wanted to take the video.

Instead, approximately two weeks later, the police returned with a USB flash drive and somehow the video images had “disappeared”. [ 24 ] Mr. Tran testified that the store cameras in his store, including those at the till, provide continuous colour video. Mr. Tran testified the time stamp on the video was sometimes one-half hour to one hour ahead of real time. [ 25 ] Mr. Tran acknowledged that he did not sign a written statement. Rather, the officer took notes while they spoke.

Additional Crown Evidence [ 26 ] The Crown tendered a Certificate of Administrator (Exhibit P-3) indicating that Gary Gustafson of 3020 – 14 th Street East, Saskatoon, was the owner of a 1984 Suzuki motorcycle for which the registration had expired or been cancelled on May 13, 2016. [ 27 ] The Crown also tendered a certified copy of a one year Order of Driving Prohibition (Exhibit P-4), ordered pursuant to the Criminal Code dated April 19, 2016, in relation to Gary Gustafson of 3020 – 14 th Street, Saskatoon. Gary Gustafson [ 28 ] The accused testified on his own behalf on the trial proper.

He acknowledged that he owned the motorcycle in question and that his licence had been suspended for impaired driving. As such, on July 24, 2016, the motorcycle was not “plated”. [ 29 ] Mr. Gustafson explained that his motorcycle was typically stored, along with bicycles and garbage cans, in the driveway along the side of his house. In June 2016, he had washed the motorcycle on his driveway. He was going to return it to the side of his house but could not find the key. At the time, he thought he may have misplaced it in the house. [ 30 ] Mr. Gustafson testified his motorcycle was stolen.

He did not have a chance to report it to the police because he did not realize the motorcycle had been stolen until he was arrested on the charges that form the subject-matter of this decision. [ 31 ] On July 24, 2016, Mr. Gustafson awoke, spoke with his brother on the phone for one hour, and drank a mickey of alcohol. After his phone conversation, he walked to Mr. Tran’s convenience store where he bought

cigarettes and then to another location where he bought a submarine sandwich. He returned home to find the police there. [ 32 ] He was arrested and handcuffed. They took his boots and a key from his key ring. He testified that the key was for the motorcycle’s accessories, which unlocks the helmets or seat. According to Mr. Gustafson, a different key was needed for the ignition and gas cap, which he no longer possessed. [ 33 ] In cross-examination, Mr. Gustafson testified he did not have the motorcycle with him when he went to Mr. Tran’s store, nor was it outside of the store while he was there. He denied that Mr.

Tran helped him lift the motorcycle off the ground. [ 34 ] He acknowledged that he was a regular customer at Mr. Tran’s store and that they would recognize each other. [ 35 ] It was Mr. Gustafson’s evidence that someone else was driving his motorcycle on Preston Avenue wearing tan boots and an Icon jacket. He denied he was driving his motorcycle. Sergeant Kelly Olafson [ 36 ] Sgt. Olafson, a member of the Saskatoon Police Service canine unit, testified on behalf of the defence in the trial proper. On July 24, 2016, Cst.

Trelnuk asked him to conduct a dog track of the accused to determine the route he had taken to his house. However, the track was unsuccessful. The dog was unable to detect a track for Mr. Gustafson. [ 37 ] The officer explained that the passage of time, air temperature and possible other foot traffic could result in a dog being unable to detect an odour in those conditions.

Communications regarding disclosure [ 38 ] In the voir dire , the defence tendered, with the Crown’s consent, a series of communications (Exhibit D-1) in the form of letters and emails between the defence, Community Legal Assistance Services for Saskatoon Inner City Inc. (CLASSIC), and the Crown’s office requesting disclosure of the video. [ 39 ] The defence first requested from the Crown, “copies of…audio/video evidence provided by people who have relevant evidence to give” and “a copy of audio/visual materials pertaining to the alleged incident” on September 27, 2016.

On October 26, 2016, the defence specifically requested “video footage from the convenience store from the time in question and/or information regarding what was done to obtain this evidence and if the evidence has [ sic ] lost, why it has been lost”. A similar request was made again on December 6, 2016. The Crown responded on December 9, 2016 that “the loop on the video had passed and the video was no longer available” when Sgt. McMillan had attended to obtain it.

In response, on December 13, 2016, the defence sought further information from the Crown requesting greater specificity with regard to the timeliness of Sgt. McMillan’s attempt to obtain the video, along with his notes. This request was repeated again on February 6, 2017. The Crown responded that it would attempt to obtain that information. No further communications were filed at trial. [ 40 ] The Crown did not call Sgt. McMillan as a witness to explain.

Questions to be decided 1. Did the Crown’s failure to disclose the in-store video breach the accused’s

section 7 Charter rights? If so, what is the appropriateremedy? 2. Has the Crown proven beyond a reasonable doubt that the accused was the driver of the motorcycle? 3. Has the Crown proven all elements of the offences beyond a reasonable doubt? Discussion 1. Did the Crown’s failure to disclose the in-store video breach the accused’s

section 7 Charter rights? [41] The defence submits that the accused’s

section 7 Charter rights were breached because the video was never disclosed, having been destroyed or improperly copied. As such, there was no opportunity to verify the reliability ofCst. Trelnuk and Mr. Tran’s testimony by assessing the video’s content or quality. [42] Further, the defence argues that the Crown had an obligation to provide evidence with respect to the circumstances surrounding the destruction of the video and failed to do so. [43] Accordingly, the defence argues the accused’s right to make full answer and defence has been breached.

The accused seeks exclusion of all evidence pertaining to the video, including any reference to it or what was observedon it, pursuant to section 24(2) of the Charter. [44] The defence relies on the following cases: R v Stinchcombe (No.1), (SCC), [1991] 3 SCR 326 [Stinchcombe (No. 1)]; R v Nikolovski, (SCC), [1996] 3 SCR 1197 [Nikolovski]; R v Sharma, 2014 ABPC 131[Sharma]; R v La, (SCC), [1997] 2 SCR 680 [La]. [45] In Nikolovski, where the issue was identity, the Crown tendered a videotape of a store robbery. The store clerk could not identify, with certainty, the accused.

The trial judge relied on her own observations from thevideotape to conclude the person who committed the robbery on the tape was the accused. The Supreme Court held that triers of fact areentitled to reach a conclusion as to identification based solely on videotape evidence, when exercising care in doing so. In that case, theonly evidence of identity was the videotape. [46] Nikolovski is distinguishable from the present case, in that here, we have no video from which to draw any conclusions. Rather, the issue is whether I can accept testimony of the officer and Mr.

Tran that they saw Mr.Gustafson on the video when the video itself has been destroyed. [47] In Sharma, the Court provides an extensive survey of cases involving the disclosure of video evidence. In that case, video evidence of the accused’s entry into the police station was systematically destroyed by the police. The Court held the accused’s

section 7 Charter rights were breached because the Crown did not take adequate steps to preserve thevideo, which was in its possession, and did not provide a satisfactory explanation, resulting in prejudice to the accused’s ability to makefull answer and defence. [48] In La, where a videotape was misplaced by a police officer and the Crown’s explanation

satisfied the trial judge that evidence had not been destroyed or lost because of unacceptable negligence, the duty to disclose had not beenbreached. In deciding whether the Crown’s explanation is satisfactory, the Court should consider the circumstances surrounding the lossof the evidence. The primary consideration will be whether the Crown or police took reasonable steps in the circumstances to preservethe evidence for disclosure: La, para 21. [49] The accused must establish actual prejudice to his or her right to make full answer and defence: La, para 25.

A distinction is to be made between cases where evidence is systematically destroyed and cases where evidence isinadvertently lost: La, para 26. [50] I have also considered R v F.C.B., 2000 NSCA 35 (leave ref’d 2000 SCCA 194). In that case, the court summarizes the relevant principles derived from La; Stinchcombe (No. 1); R v Egger, (SCC), [1993] 2SCR 451; R v Stinchcombe (No. 2), (SCC), [1995] 1 SCR 754; R v Chaplin, (SCC), [1995] 1 SCR727; R v O’Connor, (SCC), [1995] 4 SCR 411 (O’Connor); and R v Carosella, (SCC), [1997] 1 SCR80 stated as follows: 1.

The Crown has an obligation to disclose all relevant information in its possession. 2. The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence. 3. There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in itspossession, it must explain their absence. 4. If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty todisclose has not been breached. 5.

In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstancessurrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police actedreasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it. 6. If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’ss. 7 Charter rights. 7.

In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example,the conduct leading to the destruction of evidence was deliberately and for the purpose of defeating the disclosure obligation. 8. In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is oneof those rare cases that meets the criteria set out in O’Connor. 9.

Even if the Crown has shown that there was no unacceptable negligence resulting the loss of evidence, in some extraordinary case,there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairsthe right to a fair trial. In this case, a stay may be an appropriate remedy. 10.

In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence: [1] [51] The O’Connor criteria, referred to above, provide that a stay of proceedings is appropriate only in the “clearest of cases”, where the prejudice to the accused cannot be remedied or irreparable prejudice to the judicialsystem would result: O’Connor. [52] An accused who has been deprived of relevant information has not automatically lost their right to make full answer and defence. Actual prejudice must be established.

It is not enough merely to speculate that lost evidencewill cause irreparable harm. Consideration must be given to whether other evidence that does exist contains essentially the sameinformation as that which has been lost: R v Mills, (SCC), [1999] 3 SCR 668 at p 718 [Mills]; R v Paterson, [2015] SJ565 para 33. [53] In the present case, the store video was relevant to the issue of identity. It may have either confirmed or cast doubt on Mr. Tran’s testimony that the accused was in his store at a particular time and, if so, how he was attiredand whether his helmet was present.

[ 54 ] The Crown had a duty to disclose all relevant information in its possession. At no point was the store video in the Crown’s possession. Rather, the video appears to have remained with Mr. Tran after the incident. [ 55 ] As in La , the exact manner in which the tape disappeared was unknown to Mr. Tran and Cst. Trelnuk. According to Mr. Tran, a police officer returned at a later date, but when they attempted to copy the video, the recording had disappeared.

He thought that occurred approximately two weeks after the incident but was not certain. [ 56 ] I note that the Crown’s email dated December 9, 2016 explained that the “loop on the video had passed” and was no longer available. The Crown presented no further evidence at trial regarding the meaning of this statement or the circumstances surrounding the unavailability of the video. [ 57 ] While the Crown’s explanation for its failure to provide the video was not completely clear, the implication seemed to be that either there was a problem with the technology at the time of attempting to copy the video or that Mr.

Tran’s system had not retained the video. There is no suggestion that the destruction of the evidence was deliberate to defeat the disclosure obligation. I note the defence attributes no bad faith to the police. [ 58 ] In all the circumstances, the failure to obtain and preserve the video does not amount to unacceptable negligence. The police returned to Mr. Tran’s store to retrieve a copy of it, albeit unsuccessfully. The operation of Mr. Tran’s video equipment was outside the control of the police.

In the circumstances, the police took reasonable steps to preserve the video which had been inadvertently destroyed. [ 59 ] Further, Mr. Gustafson has failed to establish actual prejudice as the result of the unavailability of the store video. It is not enough to speculate that the lost evidence contained on the video has caused irreparable harm: Mills . [ 60 ] The defence argues that without the ability to view the video, its quality cannot be assessed. Neither can the reliability of the testimony of Cst. Trelnuk or Mr. Tran be verified. However, Mr. Tran independently recalled Mr.

Gustafson’s presence in his store at the relevant time. Mr. Gustafson was known to him, so his recollection would not have been based solely upon the video. The same, of course, cannot be said of Cst. Trelnuk’s testimony regarding what he viewed on the store video. His testimony in this regard serves only to corroborate that of Mr. Tran. Both witnesses were available to be cross-examined as to the quality of the video and their recollection of what they observed on it. [ 61 ] In all of the circumstances, I conclude that Mr.

Gustafson has not established on a balance of probabilities that the failure to disclose the video affected his right to make full answer and defence. Therefore, I find his

section 7 Charter rights were not breached. [ 62 ] If I am incorrect in this analysis, I would not have found, in any event, that a breach on these facts warranted exclusion of the evidence. The failure to disclose the video was inadvertent and not serious. The defence agreed that the police did not act in bad faith. There was little or no impact on the accused’s ability to make full answer and defence. And, there is an interest in having the matter adjudicated on its merits: R v Grant , 2009 SCC 32 , [2009] SCR 353. 2. Has the Crown proven beyond a reasonable doubt that the accused was the driver of the motorcycle? [ 63 ] All evidence from the voir dire is applied to the trial proper.

[64] Before addressing whether the driving offences have been made out, I must first determine whether the Crown has proven beyond a reasonable doubt that Mr. Gustafson was the operator of the motorcycle at thematerial time. Mr. Gustafson denies he was the driver, testifying that the motorcycle had been stolen prior to the events in question. [65] Because Mr. Gustafson testified on his own behalf, I am mindful of the principles and analytical framework set out in the decision of R v W.(D.), (SCC), [1991] 1 SCR 742:

(1) If I believe Mr. Gustafson’s evidence, I must acquit him.

(2) If I do not believe Mr. Gustafson’s testimony, but if I am left in reasonable doubt by it, I must acquit him.

(3) Even if I am not left in doubt by Mr. Gustafson’s evidence, I must consider whether, on the whole of the evidence which I doaccept, I am convinced beyond a reasonable doubt of his guilt. [66] In applying that framework, I must consider Mr. Gustafson’s testimony in the light of all of the evidence when assessing his credibility and determining whether the Crown has proven the offence beyond a reasonable doubt. Where there is competing testimony, I must not simply choose which version is preferable, as doing so might suggest that Mr. Gustafsonbears some burden of proof.

I recognize the burden is on the Crown to prove that the evidence as a whole establishes Mr. Gustafson’sguilt beyond a reasonable doubt. [67] Because Cst. Trelnuk was unable to see the driver’s face, the Crown must rely upon circumstantial evidence to prove identity. [68] The rule in Hodge’s case provides that the Court must be satisfied “not only that the circumstances are consistent with the accused having committed the act but that the facts were inconsistent with any other rationalconclusion than that the accused is guilty”.

The Court must be satisfied beyond a reasonable doubt that the only rational inference thatcan be drawn from the circumstantial evidence is that the accused is guilty: R v Griffin, 2009 SCC 28, [2009] 2 SCR 42 at para 33. In Rv Villaroman, 2016 SCC 33 [Villaroman], Cromwell J. suggests that while the term “rational” in this context is correct, the court prefersthe term “reasonable” inference: paras 32-34. [69] When assessing circumstantial evidence, the Court should consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt.

The question is whether the circumstantial evidence,viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused isguilty: Villaroman, paras 37 and 38. [70] To justify a conviction, the circumstantial evidence, assessed in the light of human experience, should be such that it excludes any other reasonable alternative: Villaroman, para 41. The alternative inferences must bereasonable, not just possible: Villaroman, para 42. [71] I accept as proven the following facts. Cst. Trelnuk observed a red Suzuki motorcycle, owned by Mr.

Gustafson, driven on Preston Avenue near College Drive at approximately 12:39 p.m. on July 24, 2016. The officerobtained the name, address and photograph of the owner, Gary Gustafson. [72] The driver was wearing tan boots, jeans, a tan jacket with black highlights and a black,

face-covered helmet. At 1:05 p.m., the officer observed the accused walking toward his home wearing a black skullcap, green shirt tucked into jeans and tan boots. [ 73 ] Between 1:14 p.m. and 1:49 p.m. Mr. Gustafson’s motorcycle was located by the police at a strip mall parking lot within two or three stalls from Mr. Tran’s convenience store. The strip mall was approximately 10 to 15 minutes by foot from Mr. Gustafson’s home. [ 74 ] At 1:49 p.m. Cst. Trelnuk used a key seized from Mr. Gustafson’s person to turn on at least some components of the motorcycle. [ 75 ] At 1:52 p.m. Cst. Trelnuk made inquiries in Mr.

Tran’s store. He and Mr. Tran watched the in-store video. The video showed Mr. Gustafson purchasing cigarettes from Mr. Tran at 1:09:16 p.m. According to Mr. Tran, the time was inaccurate. [ 76 ] Mr. Gustafson is a regular customer of Mr. Tran’s store and they know each other, although Mr. Tran knows Mr. Gustafson as “Terry”. Mr. Tran recalled Mr. Gustafson being in his store on July 24, 2016, purchasing cigarettes and leaving on foot. Mr.

Gustafson acknowledged being in the store on that same date, buying cigarettes. [ 77 ] It is within the context of the foregoing facts, as well as the other evidence, that I must consider Mr. Gustafson’s testimony. [ 78 ] Mr. Gustafson denies he was the operator of the motorcycle on July 24, 2016. According to Mr. Gustafson, the motorcycle had been stolen, although he had not noticed it was missing until he was arrested by the police. It is Mr. Gustafson’s evidence that someone else was driving the motorcycle at the time it was observed by Cst. Trelnuk. [ 79 ] Mr.

Gustafson testified he has had other items taken from his property. A mountain bike was stolen three or four weeks after this incident, which he did report to the police. [ 80 ] While admitting that he had been in Mr. Tran’s convenience store to purchase cigarettes, Mr. Gustafson stated he had walked to the store, and then to another location to purchase food, which he ate before “meandering” home. However, he could not say at what time this occurred. [ 81 ] Mr.

Gustafson explained that he decided to walk to the store, rather than taking a bicycle, because he had been drinking and understood riding a bicycle while under the influence of alcohol was against the law. [ 82 ] To accept Mr. Gustafson’s testimony would mean that although his motorcycle had been stolen, it coincidentally turned up in the parking lot two to three stalls from the same store, where he acknowledges he had been prior to returning home. [ 83 ] According to Mr. Gustafson, Mr. Tran was mistaken about what occurred when he was at the store. He denies having his helmet with him. Mr.

Gustafson also denies having Mr. Tran assist him in lifting the motorcycle in the parking lot or stating he would return for it later.

[ 84 ] The defence argues that Mr. Tran’s testimony was not reliable because a statement was not taken from him at the time of the events, and almost one year had passed. However, Mr. Tran knew Mr. Gustafson. While Mr. Gustafson visited Mr. Tran’s store regularly, the circumstances of that particular day would have stood out for Mr. Tran because the police attended at his store inquiring about Mr. Gustafson’s motorcycle parked near his store, and they also viewed a video of Mr. Gustafson. I note that Mr. Tran’s evidence on these points was straightforward and definite.

Further, there is nothing to suggest that Mr. Tran was motivated to be untruthful about his interaction with Mr. Gustafson on that day. [ 85 ] While Mr. Gustafson did not appear to dispute that the motorcycle located in the strip mall parking lot was his, he said the key seized by Cst. Trelnuk could not have started the engine. According to Mr. Gustafson, there were two different keys for the motorcycle—one that operated the engine, which he had misplaced, and the key used by Cst. Trelnuk, which operated only the accessories on the motorcycle. However, Cst.

Trelnuk, was clear that the key powered up and turned on “everything on the bike”. [ 86 ] Taken in isolation, it is possible that someone stole Mr. Gustafson’s motorcycle and was observed driving it. However, Mr. Gustafson’s explanation must be viewed in the context of all of the circumstances. Those circumstances include that the motorcycle and the accused were in the strip mall parking lot at approximately the same time; the driver was wearing the same colored boots as the accused; a reliable witness, Mr. Tran, testified that Mr.

Gustafson had his helmet with him and was interacting with his motorcycle; and the key on Mr. Gustafson’s person was able to power up the motorcycle. [ 87 ] Mr. Gustafson’s explanation that the motorcycle was stolen is convenient, but not believable. Neither is it consistent with the observable, undisputed facts. Furthermore, Mr. Gustafson had a motive for advancing an untruthful story. On July 24, 2016, he was still disqualified from operating a motor vehicle under the Criminal Code . [ 88 ] Considering Mr. Gustafson’s testimony in the light of all of the evidence, I do not find his denial believable.

Neither am I left with a reasonable doubt by his testimony, for the reasons stated. [ 89 ] Based on the evidence I do accept, I must consider whether the Crown has proven beyond a reasonable doubt that Mr. Gustafson was the driver. [ 90 ] The defence argues that given the evidence with respect to the timing of events in this case, it would not have been possible for Mr. Gustafson to have been driving the motorcycle at the time it was observed by the officer. [ 91 ] According to Cst. Trelnuk, he observed the operator of the motorcycle at 12:39 p.m. travelling northbound on Preston Avenue. Mr.

Tran testified the accused was in his store between 11:30 a.m. and 12:30 p.m. Cst. Trelnuk testified he recorded the time from the video as being 1:09:16 p.m. Mr. Tran testified the time stamp on the video is sometimes one-half hour to one hour ahead of real time, making the actual time Mr. Gustafson was in the store possibly between 12:10 p.m. and 12:40 p.m. Mr. Gustafson was observed walking toward his home at 1:05 p.m. Mr. Gustafson had been at Mr. Tran’s store. Cst. Trelnuk testified it is a 10 to 15 minute walk from the store to Mr. Gustafson’s home. [ 92 ] Mr. Tran’s testimony with respect to the time Mr.

Gustafson was in his store is less reliable than the officer’s notes. He did not provide a statement after these events to preserve details such as the exact time Mr. Gustafson had been in his store. Further, the time on his video is inaccurate and cannot be relied upon. Therefore, I accept the evidence provided by Cst. Trelnuk with respect to timing. [ 93 ] If Mr. Gustafson was the driver of the motorcycle, he would have had from 12:39 p.m., when first observed by Cst. Trelnuk on the motorcycle, to 1:05 p.m., when observed walking toward his home, or approximately 25 minutes to drive from Preston Avenue to Mr.

Tran’s store on Acadia Drive, buy cigarettes and walk home. I am satisfied that this was

entirely possible. From 12:39 p.m., Cst. Trelnuk followed the motorcycle briefly, stopped, conducted his CPIC and SGI search and drove to the accused’s residence, arriving at 12:50 p.m., 11 minutes later. The evidence indicates Preston Avenue, Mr. Tran’s store and Mr. Gustafson’s home were in relative close proximity. [ 94 ] There are discrepancies in the evidence with respect to clothing. The driver’s clothing included a tan jacket with black highlighting, a black helmet, jeans and tan boots. Mr. Tran testified the accused was wearing a leather jacket, possibly black in color, a helmet and pants. Cst.

Trelnuk testified that on the video, he observed the accused wearing a tan Icon motorcycle jacket with black highlights. However, I cannot ascribe as much weight to the officer’s testimony on this point because the video is not available to confirm it. Upon returning home, the accused was wearing a black skullcap, green shirt tucked into his jeans and tan boots. The only missing items are the helmet and jacket, both of which Mr. Gustafson could have discarded prior to arriving at home. [ 95 ] In

summary, the circumstantial evidence regarding the identity of the driver, is as follows: 1. Cst. Trelnuk observed a red Suzuki motorcycle with the licence plate 401 KR driving northbound on Preston Avenue near College Drive, at approximately 12:39 p.m. on July 24, 2016. 2. Although the officer could not see the driver’s face, he observed the individual wearing tan work boots, jeans, a tan jacket with black highlights and a black helmet. 3. Cst. Trelnuk obtained information from CPIC and SGI, including the owner’s name, address and photograph.

The registered owner of the motorcycle was Gary Gustafson, whose address was 3020 – 14 th Street East, Saskatoon. 4. Mr. Gustafson was in Mr. Tran’s convenience store on that day. 5. Mr. Gustafson and Mr. Tran know each other, because Mr. Gustafson is a regular customer at Mr. Tran’s store. 6. According to Mr. Tran, Mr. Gustafson was wearing a leather jacket, long pants and a helmet. Mr. Gustafson removed the helmet when he paid for his cigarettes. 7. Mr. Tran assisted Mr. Gustafson in lifting his motorcycle at that time. 8. Mr. Tran testified that Mr.

Gustafson told him he would return later for the motorcycle, and he left on foot. 9. At 1:05 p.m., the officer observed Mr. Gustafson, who he recognized from his previously viewed photo, walking towards 3020 – 14 th Street East, wearing a black skullcap, green shirt tucked into jeans and tan boots. 10. At some point between 1:14 p.m. and 1:49 p.m. the red Suzuki motorcycle, with licence plate 401 KR, was located by Cst. Smith at a strip mall parking lot. 11. That motorcycle was found by the police within two or three parking stalls of Mr. Tran’s convenience store. 12. At 1:49 p.m., Cst.

Trelnuk turned on the motorcycle in the parking lot, using the key seized from Mr. Gustafson.

13. At 1:53 p.m. Cst. Trelnuk made inquiries about the motorcycle in the convenience store. 14. Cst. Trelnuk and Mr. Tran viewed the store video, which showed Mr. Gustafson in the store at 1:09:16 p.m. 15. Mr. Tran testified the time on the store video was inaccurate and sometimes approximately one-half to one hour ahead of real time. 16. According to Cst. Trelnuk, the video showed Mr. Gustafson wearing a tan Icon motorcycle jacket with black highlights. 17. The strip mall was approximately 10 to 15 minutes, by foot, from Mr.

Gustafson’s home. [ 96 ] Viewed “logically and in light of human experience” the circumstantial evidence is not reasonably capable of supporting an inference other than that Mr. Gustafson was the operator of the motorcycle. The suggestion that the motorcycle was stolen and driven by someone else is neither a “plausible theory” nor a “reasonable possibility”: Villaroman . [ 97 ] On the basis of the evidence that I accept, the only reasonable inference that can be drawn from the evidence is that Mr. Gustafson was the driver of the motorcycle when observed by Cst. Trelnuk.

For the reasons given, taking into account the evidence as a whole, including Mr. Gustafson’s explanation and denial, I am satisfied beyond a reasonable doubt that Gary Gustafson was the driver of the motorcycle on July 24, 2016. 3. Has the Crown proven all elements of the offences beyond a reasonable doubt? Dangerous driving [ 98 ] I must consider whether the Crown has proven beyond a reasonable doubt that that the manner in which Mr. Gustafson operated the motorcycle contravened the Criminal Code .

I note that the defence made no submissions with regard to whether the driving was dangerous within the meaning of the Code . [ 99 ] The uncontradicted evidence of Cst. Trelnuk is that he engaged his siren and lights to perform a traffic stop. At that point, the operator of the motorcycle began to “strongly accelerate”. The officer turned on his radar, indicating the motorcycle was travelling at 94 kilometres per hour. The officer testified he was enforcing the speed limit in an 80 kilometre speed zone on College Drive. He did not testify as to the speed limit on Preston Avenue, where Mr.

Gustafson was driving. [ 100 ] The motorcycle then “split” two vehicles travelling northbound in adjacent lanes. While being pursued by the officer, the motorcycle cut between the two vehicles without sufficient space to maneuver safely. In other words, the motorcycle was not travelling in its own lane, but rather straddling between the two lanes occupied by other vehicles as it passed those vehicles. The space between the two vehicles was no more than one-half to one full car length at the time. The officer described the action as extremely unsafe. There was other traffic on the road at that time.

The officer aborted the pursuit. [ 101 ] I am satisfied beyond a reasonable doubt that the manner in which Mr. Gustafson was driving, by cutting between two vehicles travelling in adjacent lanes, with other vehicles on the road, was a marked departure from the norm and posed a danger to the public, having regard to all of the circumstances: R v Roy , 2012 SCC 26 ,[2012] 2 SCR 60. I therefore find Mr. Gustafson guilty of count 1.

Evading police [ 102 ] Further, I am satisfied that by failing to stop, accelerating and driving away from Cst. Trelnuk after he activated his siren and lights, the accused deliberately operated the motorcycle in order to evade Cst. Trelnuk, even though the pursuit was only 10 to 15 seconds in duration. I therefore find the accused guilty of count 2. Driving while disqualified [ 103 ] The Crown produced an Order of Driving Prohibition under the Criminal Code , for a period of one year, dated April 19, 2016. On July 24, 2016, that driving prohibition was still in effect. I have found that Mr.

Gustafson was the driver of the motorcycle on that date and was in violation of that driving prohibition. Therefore, I find the accused guilty of count 3. Conclusion [ 104 ] In conclusion, I have found the accused Gary Gustafson guilty of counts 1, 2 and 3. ____________________ D.C. Scott J