Her Majesty the Queen - v. -, 2014 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 054 Original Date: April 7, 2014 Revised Date: April 21, 2014 Information: 44690026 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Larry Dean Briltz Appearing: Mr. Drew Gillespie For the Crown Mr. Carson Demmans For the Accused JUDGMENT A. CRUGNALE-REID , J Revised Judgment : Revisions have been made to this judgment on April 21, 2014. The present revised judgment replaces the initial judgment. I. INTRODUCTION

[ 1 ] The accused, Larry Briltz faces nine charges under the Criminal Code of Canada, namely: - Three counts of evading police contrary to s. 249.1(1), - Three counts of operating a motor vehicle while disqualified contrary to s. 259(4), - One count of impaired operation of a motor vehicle contrary to s. 253(1)(a) , - One count of refusal to provide breath samples contrary to s. 254(3)(a), and - One count of resisting Constables Kerth and Ash in the lawful execution of their duty by running away and not providing his hands, contrary to s. 129(a). [ 2 ] The charges relate to three separate dates.

One charge of evading police and an accompanying charge of driving while disqualified relate to July 4, 2013. Another charge of evading police and an accompanying charge of driving while disqualified relate to August 10, 2013.

The remaining charges relate to August 14, 2013. [ 3 ] The charges as more precisely set out in the Information are that the accused did: (1) on or about the 14 th day of August, A.D. 2013 at or near Regina, Saskatchewan did 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 circumstances, contrary to

section 249.1(1) of the Criminal Code . (2) on or about the 14 th day of August, A.D. 2013 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . (4) on or about the 14 th day of August, A.D. 2013 at or near Regina, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . (5) on or about the 14 th day of August, A.D. 2013 at or near Regina, Saskatchewan did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code to provide samples of his breath for analysis contrary to section 254(5) of the Criminal Code . (6) on or about the 14 th day of August, A.D. 2013 at or near Regina, Saskatchewan did resist Cst. Kerth and Cst. Ash, peace officers engaged in the lawful execution of their duty by running away, and not providing his hands contrary to

section 129 (

a) of the Criminal Code . (7) on or about the 9 th day of August, A.D. 2013 at or near Regina, Saskatchewan did 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 circumstances, contrary to

section 249.1(1) of the Criminal Code . (8) on or about the 9 th day of August, A.D. 2013 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . (10) on or about the 4 th day of July, A.D. 2013 at or near Regina, Saskatchewan did 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 circumstances, contrary to

section 249.1(1) of the Criminal Code . (11) on or about the 4 th day of July, A.D. 2013 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . II. FACTS 1) July 4, 2013

[ 4 ] On July 4, 2013, Constable Alexander and her partner were on bike patrol. At approximately 1:45 p.m. the pair was riding in the Douglas Park area in Regina when they noticed an orange Chevrolet HHR vehicle on a hill. They decided to check the vehicle to ensure it was not abandoned or vandalized. [ 5 ] Upon reaching the vehicle, Constable Alexander noticed persons in the driver and front passenger seats both pull up their seats from the recline position. A male person in the driver’s seat began to point out the window to objects as if the two occupants were sightseeing.

Constable Alexander approached him and inquired as to what he was doing on the hill. After some brief communication, Constable Alexander noticed that he appeared to be under the influence of some sort of drug as he had dilated pupils and had difficulty answering questions. [ 6 ] He informed Constable Alexander that he was not the owner of the vehicle, was not under the influence of drugs or alcohol, and that the young female passenger was not related to him.

He did not respond to the question of whether he had a licence and registration for the vehicle. [ 7 ] Becoming suspicious, Constable Alexander dismounted her bicycle. Upon so doing, however, the male put the vehicle in gear and sped off down the hill causing rocks to fly up at the two officers. Constable Alexander radioed the event in. As she watched the vehicle speed off from atop the hill she witnessed the orange vehicle run a stop sign while making a left turn, cutting off another vehicle in the process.

Constable Alexander was able to obtain a licence plate number, which she checked and found did not match the HHR vehicle. [ 8 ] Constable Alexander had also sent out a warning to other patrolling officers to be on the lookout for an orange HHR vehicle. Constable Ash was on patrol in the area. Within minutes after Constable Alexander placed her warning, Constable Ash, who was on Park Street approaching Arcola Avenue, noticed an orange Chevrolet HHR proceeding north on Arcola.

Constable Ash was approximately ten blocks or a two minute drive away from Douglas Park at this point. [ 9 ] For a few seconds Constable Ash looked at the driver, from a distance of about 10 to 12 feet away, and saw the driver look directly at him. Constable Ash noted that the driver had short salt-and-pepper brush cut hair, wire-rimmed sunglasses and a slender face. There was also a female passenger in the vehicle. The driver quickly drove through a gas station parking lot onto Arcola and then Ring Road, accelerating throughout. Constable Ash activated his lights and sirens and pursued the driver.

The driver made no attempt to stop. Shortly thereafter, however, Constable Ash was told by a senior officer to stop the pursuit for public safety reasons. The accused was driving at least 20 to 30 km/h above the speed limit while on Ring Road and had been driving at an excessive speed of approximately 40 km/h in the gas station parking lot. Constable Ash obtained the vehicle’s plate number.

It was the same as that obtained by Constable Alexander and did not match the vehicle. [ 10 ] Constable Alexander described the driver as approximately 40 or 50 years old, slightly built, of Caucasian or possibly Metis descent, with short brush cut graying hair, and a sagging, droopy face. She testified that she had observed a black mark on the driver’s forearm which she believed to be a tattoo.

She also testified that the accused person present in Court looked “just like” the driver she saw on the day in question, whom she had observed for up to one minute from approximately one foot away when she was at the driver’s window. However, Constable Alexander did admit viewing a photograph of the accused a few days before trial. 2) August 10, 2013 [ 11 ] Constable Ash testified that on August 10, 2013 at about 2:37 p.m., he noticed a similar vehicle with what he thought to be the same driver, stopped on 8 th Avenue. It was waiting to turn south onto Park Street.

Constable Ash was also stopped on 8 th Avenue but facing the opposite direction. He was a couple of feet away from the driver and looked at him for approximately 5 to 10 seconds while the driver was stationary. Constable Ash was on the lookout for similar vehicles and testified that the orange HHR was more of a “unique” vehicle in the city, there being only some 50 or so such vehicles in the province. Other similar vehicles that he had come across all had a distinguishing feature such as a decal or vanity plates. He was therefore paying close attention to the vehicle and its occupants.

He turned and began to follow the vehicle to try to obtain a licence plate number.

[ 12 ] Constable Ash caught up with the vehicle at Victoria Avenue. He believed the driver had seen him, then turned west onto Victoria Avenue. Constable Ash followed and got the licence plate number. The plate again did not match the vehicle and was a different plate on this occasion. The vehicle then turned south onto Fleury Street. By this time Constable Ash was a few feet away from the vehicle and activated his lights and sirens. The vehicle hesitated for a brief second, made no attempt to stop, then accelerated southbound on Fleury to Arcola.

Constable Ash followed the vehicle but just as he passed the Shell Station where the previous incident had occurred, he was told again to deactivate his lights and stop the pursuit for public safety reasons. The vehicle was accelerating above the speed limit and had run a red light during the pursuit. [ 13 ] Constable Ash described the driver of the vehicle in the same manner as in his first encounter.

He stated that the driver had a slender face, was wearing wire-rimmed sunglasses, had a brush cut, and had salt-and-pepper hair. 3) August 14, 2013 [ 14 ] On August 14, 2013 at approximately 1:00 a.m., Constable Ash again had an encounter with a driver of an orange Chevrolet HHR vehicle. Constable Ash and his partner Constable Kerth had noticed the vehicle travelling on Dewdney Avenue, making a north turn on Lewvan Drive. The vehicle next turned west on 7 th Avenue. Then, according to Constable Ash, it turned into an alleyway and drove erratically around a building.

By driving “erratically” Constable Ash meant that it was kicking up dust and gravel and moving more quickly than was safe. Constable Kerth observed that it increased its speed slightly, and drove rather erratically around the parking lot although he thought that could have been due to the terrain. Both officers thought this driving behaviour was like that of someone who was trying to get away from police . The vehicle then returned to Lewvan Drive to proceed south.

Constable Kerth testified that since there had been a number of evades that had happened involving an orange HHR, they proceeded to try and catch up with it to obtain a plate number and to pull it over to see who was driving. According to Constable Kerth their intentions were to pull the vehicle over, obtain driver information, registration, and determine if this was the vehicle that had previously evaded police. [ 15 ] The officers followed the vehicle and got close enough to obtain the plate number. They determined that the plates did not match the vehicle.

Constable Kerth indicated that due to the tinted windows and poor lighting conditions at this point they were unable to see who was driving or how many persons were in the vehicle . According to Constable Ash they were about one car length away from the vehicle at this point and activated their lights and sirens but the vehicle made no attempt to stop. The vehicle instead accelerated and began to pull away from them. It reached a speed of approximately 100 km/h in a 70 km/h zone before an order to stop the pursuit again came from a senior officer.

The officers deactivated their “ active pursuit ” which had lasted a couple of minutes, perhaps five minutes at the most. [ 16 ] Approximately 5 to 10 minutes later, the officers saw the same vehicle with the same licence plate stopped at a three- way stop on Pasqua Street. Constable Kerth testified that other than travelling “ a little ” over the speed limit, the vehicle was not driving erratically. Constable Kerth guessed that it was travelling at around 60 to 65 km/h, a little higher than the posted speed of 50 km/h. The officers resumed following the vehicle.

It turned onto L ’ Arche Crescent from Garnet Street. As it did so the officers lost sight of it for a period of up to a minute at most . The officers continued to follow and saw the vehicle stopped approximately two houses in. They pulled up approximately 2 car lengths behind the vehicle and activated their lights but no sirens. Constable Ash testified that he saw the driver exit the driver ’ s seat. Constable Kerth saw him exit the driver ’ s door of the vehicle. Constable Kerth saw the driver look at them, then run southbound through a yard once he saw them. Constable Kerth ran after him.

Constable Ash testified that there was only one occupant in the vehicle at this time. [ 17 ] The officers located the accused in between two houses near a fence. It appeared that the accused had attempted to jump the fence but had fallen to the ground in so doing. The accused was lying down, with his left hand under his stomach and inside a black bag. Despite being told that the two constables were police officers, that he was under arrest, and that he had to give up his hands, the accused refused to comply. He continued to refuse and fight, not allowing the officers to put his hands behind his back.

As a result of the accused ’ s non-compliance, Constable Kerth placed his knee on the accused ’ s right arm to pin the arm so he couldn ’ t move or pull anything away. The two officers were then able to handcuff the accused. Constable Kerth testified that it was possible that his knee made contact with the accused ’ s ribs at this point although he did not think this occurred.

The officers had to help the accused stand up, although he still remained unsteady. [ 18 ] As the officers were about to take the accused to the patrol car, it was discovered that a small multi-purpose tool with a knife in it was underneath where the accused had been lying.

[ 19 ] The accused was walked 30 or so feet to the patrol car, and during this time Constable Kerth noticed a strong odour of beverage alcohol coming off of the accused’s person. Constable Ash noted the smell of alcohol was getting stronger as the accused was yelling at them on the way to the patrol car. In addition, the accused had slurred speech while yelling obscenities at the officers.

He required assistance to walk to the police cruiser as he was unsteady on his feet. [ 20 ] The accused had the same salt-and-pepper brush cut hair, slender face and wire-rimmed glasses as Constable Ash had noted on the previous occasions. Constable Ash testified that upon seeing the accused he had no doubt in his mind that he was the same person he had seen driving on the previous occasions. Once the accused was in the back of the police cruiser with the lights on, his face could be seen clearly.

As Constable Ash was making queries on the computer, the accused continued to yell at the officers and the odour of beverage alcohol from him grew stronger . It was discovered that the accused was prohibited from driving . He was then arrested for driving while prohibited, evading police, as well as for impaired driving based on the officer’s observations. [ 21 ] Constable Ash read the accused his rights and warnings at 2.04 a.m., and a breath demand at 2:05 a.m. Constable Ash said he had “no doubt” that the accused was impaired so he read him the breath demand.

The accused indicated that he understood his rights, but responded “fuck you” to the breath demand. Constable Ash indicated that he reached the conclusion that the accused was impaired based on the accused’s driving style, the odour of alcohol, slurred speech while yelling obscenities, and his unsteadiness in standing and walking. Constable Ash also testified that the accused had bloodshot eyes that evening, however, he did not specify when he made this observation. He also did not mention bloodshot eyes or slurred speech in his report.

It is noteworthy that Constable Kerth had at some point found a half-empty bottle of vodka in the vehicle by the console. [ 22 ] The accused was then transported to the police station where he arrived at approximately 2:24 a.m. While at the police station, Constable Ash assisted the accused so he wouldn’t fall, noting that the accused was again staggering while walking. When Constable Hunt, the breath technician on the night in question, spoke to the accused, the accused stated that he would decide whether to provide a sample when the time came.

Upon expiry of a 15 minute observation period the accused was told by Constable Ash that he was now required to perform the breath test. The accused replied that “no, he wouldn’t”. At this point, he started complaining for the first time that his ribs were sore, but it never stopped him from repeatedly yelling at the police officers or moving his arms around. According to Constable Ash he was warned for refusal and was asked again to provide a sample shortly thereafter, but he again refused. The accused was then arrested for refusing to provide a sample of breath. It was approximately 2:54 a.m. at this time.

He was asked if he wanted to speak to a lawyer and again told the officer to “fuck off”. When asked if he understood the police warning he wouldn’t answer. [ 23 ] The accused was then taken to the hospital as a precaution to double check for injuries. He had been complaining of rib pain to the right side of his body, but when he was taken to a room, despite having yelled that he was in so much pain he couldn’t breathe or move, he lay down and fell asleep almost instantly. He was seen by a doctor and cleared.

Upon returning to the police station, the accused again complained of pain in his ribs when the officer touched the left side of the accused’s body to search. When the officer pointed out to the accused that he had originally been complaining of pain on his right side only, the accused again told him to “fuck off”. [ 24 ] The accused testified at trial. He did not take issue with the Certificate of Disqualification or Prohibition filed by the Crown indicating that he was disqualified from driving during the period of July 13, 2011 to and including August 14, 2013.

He did, however, deny driving on all dates in question. He also showed the Court that he had no mark or tattoo on his forearms. [ 25 ] Concerning the last incident on August 14, 2013, the accused testified that he had been asked by his friend Calvin to help him move some items with the accused’s vehicle. The accused testified that he informed his friend that he was not licenced to drive and did not have his vehicle plated. The friend suggested that he would drive and that he could place a false plate on the vehicle. The accused testified that he agreed to this plan.

The accused said that, before going to get the car, however, he and Calvin had to walk for a number of blocks to retrieve Calvin’s luggage. The pair then walked with a number of bags a further number of blocks to pick the vehicle up and ultimately transport the luggage to Calvin’s residence. [ 26 ] According to the accused, Calvin was driving. The accused admitted that the police had pursued their vehicle as Constable Ash and Constable Kerth had described.

He said they had been “red lighted” and that Calvin sped away from police despite the accused telling him that he was going to get a flight charge and should pull over. When the vehicle arrived by the house where it was ultimately

found by the police, the accused said that he told Calvin to run away because Calvin had been drinking and the police were going to be coming. The accused admitted to fleeing when the police arrived. However, he stated that he walked away as opposed to having run away. [ 27 ] The accused further testified that while Calvin was driving, he was in the left back seat rolling a marihuana joint. The accused admitted to having smoked two marihuana joints and to having consumed “a couple of drinks” of vodka and one beer on the night in question.

The accused also stated that he has difficulty remembering basic things such as people’s names. He stated that his memory loss is attributable to what he believes to be dementia in his old age. The accused testified that he is 59 years of age. [ 28 ] Concerning the accused’s choice to leave when the police arrived, he stated that his reason for doing so was to dispose of the marihuana that he had with him. The accused testified that when he came to a fence he threw the marihuana over the fence and crouched down.

Soon thereafter, the police found him and, according to the accused, arrested him with excessive force. In particular, he testified that the officers were kneeing him in the ribs and generally assaulting him during the arrest. [ 29 ] The accused further stated that he did not say a word to the officers during the encounter but subsequently testified that he made numerous comments during this time. For instance, he stated that he told the officers that he had recently smoked marihuana in his car.

He also expressed doubt as to whether he began telling the officers of his medical needs when in the back seat of the police cruiser. In addition to denying speaking to the police, the accused also denied being belligerent and offensive towards the officers, or even responding to the officer’s offer to facilitate his right to counsel.

The accused stated that all he said to the officers at the police station was that he needed medical attention. [ 30 ] The accused was unable to provide the address or name of the occupant of the place where he stored the car driven on the night in question despite the individual being an “old friend” of the accused. He was also unable to provide the location of the house he was partying at on the night in question. Finally, the accused stated that he ripped his pants on the night in question, but video evidence was tendered that showed the contrary. III. ISSUES [ 31 ] The issues are as follows: (

a) Has the Crown proven beyond a reasonable doubt the identity of the accused as the driver in all driving charges, namely, the charges under sections 259(4) , 249.1(1) and 253(1) (

a) on each of the three dates? (

b) Has the Crown proven beyond a reasonable doubt that the accused was pursued by police within the meaning of s. 249.1(1) on each of the three dates? (

c) Has the Crown proven beyond a reasonable doubt that the accused refused, without lawful excuse, to comply with a valid breath demand contrary to s. 254(5) on August 14, 2013? (

d) Has the Crown proven beyond a reasonable doubt that the accused’s ability to drive was impaired contrary to s. 253(1) (

a) on August 14, 2013? (

e) Has the Crown proven beyond a reasonable doubt that the accused resisted Constables Kerth and Ash in the lawful execution of their duty by running away, and not providing his hands contrary to s. 129 (

a) on August 14, 2013? IV. ANALYSIS

[32] In this case there is conflicting evidence between that of the Crown witnesses and that of the accused, most notably withrespect to whether the accused was the driver in each driving incident in question, which the accused denies. [33] An assessment of the credibility of the witnesses is necessary, given the conflict between the evidence of the police officersfor the Crown and that of the accused. [34] I am mindful of the test for credibility mandated by R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [35] In the Court’s opinion, the officers testified in a candid and straightforward fashion.

Their evidence was not shakenon cross-examination and is accepted as credible. [36] The accused, on the other hand, testified as to a version of events that strains credulity, particularly with respect tothe events of the evening leading up to his arrest on August 14, 2013. He admitted to having memory problems, and at one point evensuggested that he might have dementia. He could not provide the last name of his friend that he claimed to have known for some time. In addition, as the recitation of the facts at paragraph 28 suggests, the accused contradicted his testimony on a number of occasions.

Byhis own admission the accused was under the influence of alcohol and marihuana on August 14, 2013. The accused did not present as acredible witness and his evidence is rejected where it conflicts with that of the officers. I am not left in reasonable doubt by the evidenceof the accused. [37] It now falls to be determined whether the Crown has proven the charges in question beyond a reasonable doubt on theevidence accepted. (

a) Has the Crown proven beyond a reasonable doubt the identity of the accused as the driver in all driving charges, namely, thecharges under sections 259(4), 249.1(1) and 253(1)(a)? [38] Before discussing the issue of identity, a determination is required concerning the second date on which offenceswere alleged to have occurred. The Information alleges that offences of disqualified driving and evading police occurred on or aboutAugust 9, 2013. Constable Ash’s evidence was however that they occurred on August 10, 2013. [39] Section 601(4.1) of the Criminal Code applies where there is a variance between the date charged and the evidence presented.This

section reads as follows: A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribedperiod of limitation, if any; [40] The application of this provision was discussed in the recent decision of R. v. Jacques, 2013 SKCA 99. In that casethe evidence did not establish that the offence of accessing child pornography occurred within the time frame specified by theindictment. The Court of Appeal determined that the date of accessing the pornography was neither an essential element of the offencenor crucial to the accused’s defence.

In so doing the Court referred to the approach set out in the Supreme Court of Canada decision in R.v. B.(G.), (SCC), [1990] 2 S.C.R. 30 and commented as follows: 64 In summarizing the proper approach a judge must take when the evidence has not proven that an offence was committed on the datespecified in the indictment, Wilson J. said this at p. 53: Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or the

information conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offence or crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must then determine whether the time of the offence has been proven beyond a reasonable doubt.

If the answer to the first question is in the negative, a conviction may result even though the time of the offence is not proven, provided that the rest of the Crown's case is proven beyond a reasonable doubt. [ 41 ] In the case at hand, having regard to the Jacques case, I am of the view that the period of time during which the accused was disqualified from driving is an element of the offence of driving while disqualified, but that this element has been met on the evidence. The evidence establishes the period of disqualification to be July 13, 2011 to August 14, 2013.

The charges specify the impugned driving occurred “on or about” August 9, 2013. Whether there was driving on the 9 th or 10 th is not critical as the accused was disqualified on both days. As well, evading police is an offence regardless of the date it occurs.

There is no suggestion or argument that the accused was prejudiced in his defence of these charges as a result of any variance. [ 42 ] I am satisfied that the impugned driving occurred on August 10, 2013 and pursuant to s. 601(2) of the Criminal Code , the dates mentioned in the two counts in question, namely, counts 7 and 8 on the Information, shall be amended to August 10, 2013 to conform to the evidence. [ 43 ] I now turn to the issue of identity. The most recent Saskatchewan authorities on identity are R. v. Desnomie , 2010 SKCA 64 , [2010] S.J. No. 273 ; R. v. Bitternose , 2009 SKCA 60 , [2009] S.J.

No. 288 ; and R. v. Bigsky , 2006 SKCA 145 , [2006] S.J. No. 81 . A number of general principles emerge from these cases, arising primarily out of recognition of the frailty of eyewitness identification evidence. [ 44 ] Foremost among these principles is that brief eyewitness observation concerning identity is insufficient to prove identity by itself. However, strong circumstantial evidence may, in combination with such eyewitness identification evidence, prove the identity of the accused beyond a reasonable doubt.

In considering the eyewitness evidence, however, it is imperative that the Court consider the reliability of the eyewitness evidence in the circumstances, and not simply the credibility of the witnesses. This requirement acts as a safeguard against the obvious risk that a witness, although convinced they are being truthful, is nevertheless mistaken in their observation.

Counsel for both sides rely on the three above authorities such that a brief overview of these cases will be useful. [ 45 ] In Desnomie , supra , the accused was charged with one count of evading police contrary to s. 249.1(1) of the Criminal Code . The police had been called to a house for a weapons complaint. A vehicle was seen leaving the house. The vehicle refused to pull over and a chase ensued. However, the chase was called off for public safety reasons. One of the officers briefly saw the driver and gave a description of the driver, which turned out to be a relatively accurate description of the accused.

The officer had also used the vehicle ’ s plate number to determine that the owner of the vehicle was the accused ’ s common-law wife. Four hours later, a car with a matching licence plate was pulled from a creek. There was no evidence that the vehicle had been broken into, suggesting that the driver entered with keys. The accused denied being the driver .

On appeal, the Saskatchewan Court of Appeal was satisfied that the eyewitness identification evidence, in combination with the circumstantial evidence, was sufficient to prove the identity of the accused beyond a reasonable doubt. [ 46 ] In Bitternose , supra , a male person holding a knife had committed a robbery. The victim, although in a dark alley, backed up into the light so as to see the robber ’ s face.

The victim described the robber as approximately six feet three inches tall, 240 pounds, Aboriginal, and wearing a black hoodie, blue jeans, a hat pulled over his brow, and possessing a knife approximately five inches in length, including the blade and handle. Two of the victim ’ s friends also described seeing a similar person shortly after the robbery. The accused was apprehended by police within minutes in the vicinity. The accused was breathing heavily and provided the police with a number of false names. One of the friends confirmed that the individual was the robber.

The victim later identified the accused in a nine person line-up although the victim was torn in choosing between the accused and another individual. Further, a wallet and Roughrider jersey stolen from the victim were found in a backyard the accused was seen attempting to enter. A knife approximately six inches long was also found in the residence the accused was seen exiting. In docket, however, neither of the victim ’ s friends could identify the accused. The accused did not testify.

The Saskatchewan Court of Appeal upheld the conviction at trial and found that the identity of the accused had been proven beyond a reasonable doubt. [ 47 ] In Bigsky , supra , the accused was charged with numerous driving-related offences. The accused had testified that he was not the driver, but was rather an occupant in the truck being driven by an unknown third party with whom he had been partying.

The only evidence upon which the accused was identified consisted of a police officer ’ s observation of the driver that lasted one or two seconds while the driver and officer drove past one another going in opposite directions. The officer testified that he was 20 or 30 feet away at the time he observed the driver. Further, there was significant traffic on the bridge where the driver was observed. The driver

was in a high-seated truck, and the officer only saw the side of the driver’s face. There was no circumstantial evidence to support theofficer’s belief that the accused was the driver of the vehicle. In the result, the Saskatchewan Court of Appeal overturned theconvictions and acquitted the accused. [48] All of the above cases involved one incident of eyewitness identification evidence. In the case at hand, however, threedifferent officers on four different occasions claim to have witnessed the accused commit a similar offence. [49] This situation more closely resembles the fact pattern in R. v.

Biddle, (ON CA), [1993] O.J. No. 1833, 84C.C.C. (3d) 430, a decision of the Ontario Court of Appeal, which was cited with approval in Bigsky, supra. In Biddle, the accused wasconvicted on two counts of assault causing bodily harm arising from separate incidents. Each victim was attacked immediately afterexiting the underground parking area of their apartment buildings. In addition, both of the victims were choked and suffered bodilyharm. The accused was arrested around the area of the second attack three hours after the attack, wearing different clothing thandescribed.

The victim of the first attack was unable to identify her attacker in a line-up or while in court at the preliminary inquiry. Thisvictim did, however, identify the accused as her attacker at trial but only after she was informed about the second victim making apositive identification of the accused. The victim from the second attack provided a roughly accurate description of the accused whenarrested shortly after the attack. She testified that she looked at her attacker “from head to foot” for a “couple of seconds” before theattack. She also provided a roughly accurate sketch of the accused.

In addition, the second victim identified her attacker when shown apassport photo of the accused. [50] Further circumstantial evidence was also present. The accused was seen driving in the heavily populated area ofdowntown Toronto about two hours before the second attack and again observed walking in the area about an hour after the attack. Moreover, the accused had cuts on his hands.

When asked about the cuts, he stated that he was in “a fight downtown” but in court statedthat he received the cuts from fighting with his dog. [51] Speaking for a unanimous Court of Appeal, Justice Doherty concluded that the testimony of the first witness, by itself, wasinsufficient to prove identity beyond a reasonable doubt.

However, Justice Doherty goes on to state at paragraph 9 that if the jury was“satisfied that the same person committed both assaults, they could use the evidence identifying the appellant as the perpetrator of one ofthe assaults in determining whether the Crown had proved that he also committed the other assault”. In concluding that the evidencefrom the second victim, as well as the similar nature of the attack, was sufficient to determine the accused’s identity, the Court fullyrecognized that the evidence was not perfect.

Justice Doherty states at paragraphs 29-30 that: In addition to the frailties which attach to any identification evidence, there were obvious additional potential shortcomings in theidentification evidence given by M.F.H. Her opportunity to observe her attacker, while better than that of C.F., was short and far fromideal. Her initial description was general and made no reference to a beard. Her sketch, drawn the next day, suggested some facial hairbut not a beard as worn by the appellant.

Her description of her assailant's clothing did not correspond to the clothing worn by theappellant about three hours later when he was arrested… The identification of the appellant in the photo “line-up” by M.F.H. was obviously weakened by the earlier showing of a singlephotograph of the appellant to her. [52] Despite these frailties in the evidence, the Court found there was sufficient evidence to convict the accused on the secondcount, and that the similar nature of the two offences was sufficient to convict the accused on the first count. The Supreme Court ofCanada upheld this finding: See R. v.

Biddle, (SCC), [1995] 1 S.C.R. 761, [1995] S.C.J. No. 22, although it did order anew trial on other grounds. [53] In the case at hand, as was the case in Biddle, it is reasonable to conclude that Constable Ash’s identification evidence relating to July 4th, which amounted to seeing the accused for a few seconds from ten or twelve feet away, is not sufficient to establish identitybeyond a reasonable doubt. Moreover, the evidence of Constable Alexander with respect to identity was of doubtful reliability.

Shetestified that the accused had a mark on his arm that she believed was a tattoo; however, the accused had no mark or tattoo on his arms atthe time of trial. Her in-court identification of the accused consisted of saying that the accused looked “just like” the driver but she didnot state positively that he was the driver. Her in-court identification of the accused is additionally to be given little weight as it wastainted by her having seen a photograph of the accused before trial: See Biddle, supra.

Constable Alexander’s description of the driverbore a resemblance to the accused; however this evidence both standing alone and in combination with the above evidence of ConstableAsh, is insufficient to prove identity.

[ 54 ] The remaining evidence as to identity rests in the subsequent observations of Constable Ash and, in part, Constable Kerth. Whether identity can be made out based on these observations and the surrounding evidence is largely determinative of the issue of identity. [ 55 ] The approach of Justice Doherty in Biddle looks to identification evidence from subsequent charges, as well as the similarity of subsequent offences. This approach is apt in the circumstances of this case. This is so as the driving while disqualified and evade police charges all arise on similar facts. The following similarities are most striking: (

a) the same model and colour of car was involved in all occasions; (

b) the model is rather “ unique ” , with only 50 vehicles of the same model to be found in Saskatchewan; (

c) other similar vehicles Constable Ash had come across had a distinguishing feature such as a decal or vanity plates while the accused ’ s car did not; and (

d) the vehicle did not stop after police activated emergency lights and equipment. [ 56 ] In addition to this similar fact evidence, Constable Ash, on the second date in question, was able to view the driver relatively well. Constable Ash testified that the accused looked directly at him from a couple of feet away. He looked at the driver for 5 to 10 seconds, but stated that he was able to identify him positively.

It is also noteworthy that during this second instance, Constable Ash was actively looking for the accused’s car and person. [ 57 ] Constable Ash testified that on the third date in question, namely, August 14, 2013, upon seeing the accused, he had no doubt in his mind that this was the same person he had seen driving the orange HHR on the previous occasions.

The officers had encountered the orange HHR at around 1:00 a.m., pursued it for a period of time until the pursuit was called off, resulting in their losing sight of the vehicle for a short period of about 5 to 10 minutes before they encountered the same vehicle again with the same plate on it at a three- way stop on Pasqua Street. They followed the vehicle to L’Arche Crescent after losing sight of it for up to a minute as it turned from Garnet onto L’Arche, and found it stopped some two houses in.

The officers then pulled up about two car lengths behind it. [ 58 ] The officers had been unable to see who was driving the vehicle, however, Constable Ash testified that he saw the accused exit the driver’s seat and Constable Kerth saw the accused exit from the driver’s door. The officers did not see anyone else at the scene. In the circumstances it is reasonable to infer that the accused had been driving throughout and I so conclude.

This conclusion is supported by the accused’s own admission he was in the vehicle throughout and was aware that the police “red-lighted” and pursued it and that the vehicle ought to have pulled over for the police. He did of course deny driving, however this denial has been rejected by the Court. [ 59 ] In light of the foregoing and on all the evidence, the Court is satisfied that the Crown has proven beyond a reasonable doubt the identity of the accused as the driver on all driving charges on all three dates.

The similar nature of the offences on all three dates in combination with the eyewitness identification evidence on the second and third dates and the remaining evidence referred to above leaves me without a reasonable doubt as to the identity of the accused on all driving charges. [ 60 ] Accordingly on all the evidence including the evidence of the accused’s disqualification from driving, I am satisfied that the Crown has proven beyond a reasonable doubt all three charges of driving while disqualified contrary to s. 259(4) of the Code . (

b) Has the Crown proven beyond a reasonable doubt that the accused was pursued by police within the meaning of s. 249.1(1) on each of the three dates? [ 61 ] Defence counsel submits that even if the identity of the accused were proven, the accused nevertheless did not on any occasion evade the police, because he was not being pursued by police as that word in the

section has been defined in the case law. [ 62 ]

Section 249.1(1) of the Criminal Code reads as follows: Every one 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 is reasonable in the circumstances.

[ 63 ] In support of his argument, counsel for the accused cites R. v. R.Z ., 2008 SKQB 313 , [2008] S.J. No. 472. [ 64 ] Justice Ryan-Froslie, as she then was, in R.Z ., supra , referred to the Ontario Court of Justice’s decision in R. v. Kagayalingam , 2006 ONCJ 402 , [2006] O.J. No. 4334, which defined the term “pursuit” in s. 249.1(1) as “to follow with the intent to overtake”.

Moreover, Judge Lipson in Kagayalingam states at paragraph 38 that “active following” is not synonymous with “pursuit”. [ 65 ] In R.Z. , supra , the accused knew that there were police following him due to the police cruiser having its lights activated. However, he refused to pull over his vehicle. Instead, he drove at nearly three times the speed limit. The pursuing officer stated that he attempted to “overtake” the vehicle. However, the officer never attempted to pass the vehicle.

The accused’s conviction of evading police was upheld. [ 66 ] On the facts in this case, Constable Kerth stated in-chief that on seeing the HHR, which was similar to the HHR that had been involved in the previous evades, they proceeded to try and catch up to it and pull it over to see who was driving and obtain driver information to determine if it had been involved in the past evades.

When asked in cross-examination if they tried to overtake the vehicle, they each replied in the negative. [ 67 ] It is important to note, however, that the word “overtake” can be ascribed different meanings, particularly in different contexts such as in matters involving highway traffic and the rules of the road where overtaking a vehicle may mean passing the vehicle and continuing on rather than pursuing it. Indeed, defence counsel gave the word two different

definitions. It is important to cite in full counsel’s and Constable Ash’s exchange in this regard found at page 61 of the transcript: Counsel : Okay. So I take it you didn’t try to overtake that vehicle? Constable Ash : To – by – do you mean to pass it ? Counsel : Yes. To overtake, catch up to it . Constable Ash : Well, I was behind it. Counsel : Right. Constable Ash : Like, as– Counsel : But – Constable Ash : -- I followed it for a short distance – Counsel : Yes. Constable Ash : -- less than a car length away, but, no, I never tried to overtake it.

That ’ s not safe . [emphasis added] [ 68 ] As for Constable Kerth, counsel addressed the same issue but without prefacing his question with a definition of “ overtake ” . The exchange is found at page 93 of the transcript: Counsel : Okay. You don’t try to overtake that vehicle? Constable Kerth : Absolutely not, no. [ 69 ] Based on the first exchange, it is clear that counsel defined the word “ overtake ” in two ways. First, he defined the word as “ to pass ” and second as “ to catch up with ” .

[ 70 ] It is clear from the testimony of Constable Ash and Constable Kerth that each officer was trying to “ catch up with ” the vehicle in order to pull the accused over and not to “ pass ” the vehicle. The accused was speeding away. The constables accelerated to the point where they were approximately a car length away. Both constables had the police cruiser ’ s flashing lights and sirens activated. In all meaningful ways, then, both constables were trying to “ catch up with ” the accused in order to make him stop and, in that sense, overtake the accused.

Although Constable Kerth denies that he was attempting to “ overtake ” the accused, the confusion arises from counsel leaving the definition of the word ambiguous. Based on the facts, Constable Kerth was clearly attempting to “ catch up with ” the accused ’ s vehicle to make it pull over so he could engage with the driver. [ 71 ] In argument, counsel appears to only adopt the first meaning, being “ to pass ” . This is illogical given the context and purpose of s. 249.1(1) of the Criminal Code . That

section is meant to deter individuals from evading police. One can be evading another without having the other attempt to pass the evading party. Indeed, in R.Z . , supra , there was no mention of the officer attempting to pass the accused, who was convicted. Therefore, R.Z . is also consistent with the latter definition of the word “ overtake ” . [ 72 ] The latter definition also appears to be in line with the Alberta Provincial Court decision of R. v. Zylinski , 2009 ABPC 226 .

In that case, Judge Johnson, after citing the definition of pursuit cited in Kagayalingam , concluded as follows at paragraph 36: He clearly intended that the vehicle stop and he put on his lights to signal that purpose. When the vehicle did not stop he followed it continuing, through the use of his emergency lights, to try to make it stop. He was not following to observe the vehicle -- he was following it to make it stop.

That constitutes a pursuit. [ 73 ] I find, therefore, that the meaning of the word “overtake” includes “to catch up with” and does not require any attempt to pass the other vehicle. [ 74 ] Finally, it is useful before leaving this discussion to comment upon dictionary

definitions. It is important to note that the authorities cited follow the dictionary definition of the word “pursue” from the Canadian Oxford English Dictionary and The Concise Oxford Dictionary 8th ed., (Oxford: Clarendon Press, 1990). I would note that in Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 at paragraph 37 , [2013] S.C.J. No. 11, the Supreme Court of Canada most recently used the Oxford English Dictionary (online). That dictionary defines “pursue” as “to follow or chase” and does not mention an intent to overtake.

Relying on this dictionary definition would answer the question at issue. [ 75 ] It is also useful to take the analysis one step further and note that the word “overtake” in the Oxford English Dictionary (online) is defined as to “catch up with and pass while travelling in the same direction”. Clearly this definition of the word “overtake” encompasses actions beyond that of the word “pursue” as cited in that dictionary. In my view, it would be best to simply adopt the definition of “pursue” from the same dictionary as used most recently by the Supreme Court of Canada .

However, as I am bound by the definition of “pursue” in R.Z. , supra I have adopted the alternative definition of “overtake” as meaning “to catch up with” as it is the only definition that seems to fit logically with the rationale in R.Z ., supra . [ 76 ] In

summary, then, I find that the accused was being pursued by the police. The other elements of the offence, as held in R. v. Kulchisky , 2007 ABCA 110 at paragraph 4 , [2007] A.J. No. 323 and cited approvingly at paragraph 22 in R.Z ., supra , are included in the following list: (

a) The accused must be operating a motor vehicle; (

b) A peace officer must be pursuing the accused; (

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

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

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

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

g) The accused must fail to stop “in order to evade the peace officer”.

[77] None of these elements other than the pursuit by police were contested by defence counsel. In all the circumstances,therefore, I am satisfied that these additional elements have been established beyond a reasonable doubt and that the Crown has provenbeyond a reasonable doubt all three charges under s. 249.1(1) of the Criminal Code. (

c) Has the Crown proven beyond a reasonable doubt that the accused refused without reasonable excuse to comply with a breathdemand contrary to s. 254(5)? [78] Section 254(5) states that “[e]veryone commits an offence who, without reasonable excuse, fails or refuses tocomply with a demand made under this section”. [79] In R. v. Lewko, 2002 SKCA 121 at paragraphs 9-10, [2002] S.J.

No. 622, the Court stated that the Crown mustprove three elements beyond a reasonable doubt: (1) a valid breath demand; (2) failure or refusal to comply with a valid demand; and (3)the accused intended to refuse or fail to provide a sample. If the Crown is successful in so proving, an evidential burden is placed on theaccused to prove that the accused had a reasonable excuse not to provide a sample. [80] Counsel makes two arguments. First, he argues that the officer did not have the requisite grounds to make a breathdemand.

As per section 254(3), an officer must have reasonable grounds to believe that the accused’s ability to drive was impaired bydrug or alcohol before making a demand. If the officer did not have such grounds, it must follow that the accused did not refuse a lawfuldemand to provide samples of his breath.

Second, counsel argues that the accused had a reasonable excuse not to provide a sample as heclaims to have had injured ribs. [81] Concerning the requirement that the officer have reasonable grounds, section 254(3) of the Criminal Code requires that theofficer must subjectively believe the individual has driven while impaired within the preceding three hours and that belief must berationally sustainable on an objective basis (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48, [1994] S.C.J. No.87). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.

Shepherd, 2009 SCC 35, at para. 23,[2009] 2 S.C.R. 527) or prove its case beyond a reasonable doubt (R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127), rather, as stated byJustice Caldwell of the Saskatchewan Court of Appeal in R. v. Gunn, 2012 SKCA 80 at paragraph 7, [2012] S.J.

No. 503: ... the standard of ‘reasonable grounds to believe’ is one of lesser probability which simply requires the reviewing court to determinewhether the factors articulated by the officer who made the breath demand were reliable and were capable of supporting the officer’sbelief that the individual had driven while impaired or ‘over .08’ within the preceding three hours. [82] In determining whether the officer had reasonable grounds, the Ontario Court of Appeal in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, [1993] O.J. No. 18, aff’d (SCC), [1994] 2 S.C.R. 478, [1994] S.C.J.

No. 51, heldthat an officer only needs to believe that the accused’s ability to drive is slightly impaired. Thus, if an officer’s belief that they havereasonable grounds to believe an individual’s ability to drive is slightly impaired by alcohol or drug is objectively reasonable, theirdemand will be lawful (Gunn, supra, at para. 9). [83] In support of an officer’s observation that an accused’s ability to operate a motor vehicle was slightly impaired by alcohol, theindicia of impairment cited need not be true or even accurate.

In Gunn, supra, at paragraph 15, Justice Caldwell states as follows: In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether the observationsand circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by theofficer; however, the Crown does not have to prove the inferences drawn were true or even accurate. [emphasis in original] [84] Finally, in determining if the arresting officer’s grounds to make a breath demand were reasonable, only those observationsthat occurred before the demand are to be taken into consideration: see R. v.

Nahorniak, 2010 SKCA 68 at para. 23, [2010] S.J. No. 300citing R. v. Shepherd, 2009 SCC 35, 309 D.L.R. (4th) 139.

[ 85 ] In discussing his conclusion that he had grounds to make a breath demand, Constable Ash indicated that there was no doubt in his mind that the accused was impaired and related the following indicia of impairment: (

a) The accused’s driving style; (

b) Smell of alcohol on accused that grew stronger as he spoke; (

c) Accused was slurring his words while yelling obscenities at the officers; and (

d) Accused required assistance to stand and was unsteady on his feet. [ 86 ] Constable Ash had described the accused’s quick turn into the alley as “erratic”, spitting up dust and travelling faster than safe, and as behaviour that suggested the driver was trying to evade police. The subsequent driving behaviour after lights were activated involved further evasive action and driving in excess of the speed limit. Such evasive driving may be an indicator of impaired ability to drive. [ 87 ] Defence counsel submitted the case of R. v. By , 2013 SKPC 29 , [2013] S.J. No. 77 . That case is unhelpful.

In By , the accused was not belligerent, slurring his words, or unsteady on his feet. These are significant indicia of impairment that readily distinguish the case. [ 88 ] Although there was no explicit evidence that the smell of alcohol came from the accused ’ s breath, there was evidence that the smell grew stronger as he spoke, thus suggesting that it came from his breath. The slurred words and unsteadiness of the accused on his feet are both significant factors of impairment. In addition the accused was belligerent and yelling obscenities.

In the circumstances, I have no difficulty concluding that there were reasonable grounds to make a breath demand. [ 89 ] Turning to the reasonable excuse argument, there is an evidentiary burden on the accused. Counsel asserts that if the accused was in fact in the injured state which he claims, this constitutes a reasonable excuse. [ 90 ] I agree that it might constitute a reasonable excuse if the accused were injured as claimed. However, as stated above, I found that the accused ’ s evidence was not credible when conflicting with any officer in the proceedings.

I do not believe the accused was unable to provide a breath sample for a number of reasons. First, the accused was yelling throughout. I find it unlikely that the accused could be so vocal and belligerent yet be unable to provide a sample of breath. Second, the accused told the officers that his ribs on his right side were in pain. However, he later complained of left- sided rib pain when the officers touched his left side to search. When it was pointed out to him that he had been complaining of right-sided rib pain he told the officer to “ fuck off ” .

Third, the accused did not tender any medical evidence that demonstrated that he in fact had problems with his ribs. Finally, he was seen by a doctor on the night in question and he was cleared.

As a result, I find the accused has failed to meet his evidential burden. [ 91 ] Accordingly, I find that the accused refused to provide a sample of his breath and that the remaining elements of the offence are established. [ 92 ] Given the above, and on all of the evidence, I find that the Crown has proven beyond a reasonable doubt that the accused refused a valid breath demand, without reasonable excuse, contrary to s. 254(3) (

a) of the Criminal Code as charged. (

d) Has the Crown proven beyond a reasonable doubt that the accused ’ s ability to drive was impaired contrary to s. 253(1) (

a) on August 14, 2013? [ 93 ] Section 253(1) (

a) of the Criminal Code provides that it is an offence to operate a motor vehicle while impaired by alcohol or a drug.

[94] The leading case is R. v. Stellato, (ON CA), 78 C.C.C. (3d) 380, [1993] O.J. No. 18 (ONCA),aff'd (SCC), [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. In Stellato, the Ontario Court of Appeal held that it is arequirement that the Crown prove beyond a reasonable doubt that there is some evidence that the accused’s ability to drive a vehicle wasimpaired. [95] In the Court’s opinion, considering the evidence as a whole, there is sufficient evidence upon which to concludebeyond a reasonable doubt that the test in Stellato has been met in relation to the date in question.

Although there were periods of timewhen the HHR vehicle was travelling normally, there were periods of time when it was not. There was the flight from police, and thedriving at excessive speeds reaching 100 kilometres per hour in a 70 kilometre zone. Constable Ash testified that there was erraticdriving on the part of the accused early on when he drove around a building more quickly than was safe, spitting up dust and stones in anapparent attempt to evade police. [96] The accused himself admitted in his testimony to having consumed alcohol and marihuana.

According to ConstableAsh, the accused smelled of alcohol at the scene, which smell got stronger when he spoke. [97] There is evidence of physical indicators of impairment. According to Constable Ash the accused was unsteady onhis feet and required assistance to both stand and walk to the police vehicle and to walk at the police station. He had bloodshot eyes andslurred speech. He was belligerent and uncooperative, yelling and swearing at the officers.

Constable Ash spent approximately one andthree quarter hours in the company of the accused and testified that he had no doubt based on his observations that the accused wasimpaired. Constable Kerth also noted the smell of alcohol and that the accused was belligerent and agitated. [98] Taking all of the evidence cumulatively, I am satisfied that the accused’s ability to drive was impaired by alcohol ora drug and that the Crown has proven beyond a reasonable doubt that the accused was driving while impaired contrary to s. 253(1)(

a) ofthe Code as charged. (

e) Has the Crown proven beyond a reasonable doubt that the accused resisted the constables in the execution of their duty by runningaway and not providing his hands contrary to

section 129(

a) on August 14, 2013? [99]

Section 129(

a) of the Criminal Code provides that it is an offence to resist or wilfully obstruct a peace officer in theexecution of his duty. [100] The case law has seen the concept of resisting subsumed into the broader concept of obstructing a peace officer engagedin the execution of his or her duties. The dominant view is that s. 129(

a) creates one offence, the gravamen of which is the “interferencewith a peace officer engaged in the execution of his duty by resisting or wilful obstruction”: see R. v. Glowach, 2011 BCSC 241 at para.65, [2011] B.C.J. No. 309 cited approvingly by Judge Rybchuk in R. v. Brown, 2013 SKPC 178 at para. 43, [2013] S.J. No. 721. [101] In R. v. Blackwell, 2007 BCSC 1240 at para. 10, [2007] B.C.J. No. 1826, Justice Smith, cited approvingly in Glowach, supra,summarizes the elements of the offence as follows at paragraph 28: actus reus: (

i) conduct that constitutes an obstruction (defined as either obstruction or resistance); (ii) to a peace officer; (iii) who wasengaged in the execution of his duty at the time. mens rea: (

i) the obstruction was done wilfully. [102] Resisting requires that one “oppose or…endeavour to prevent a peace officer from carrying out the lawful discharge ofhis duty”: R. v. Gerein, [1980] B.C.J. No. 867. Neither obstruction nor resisting arrest require that there be

an act of physical force: seeR. v. Gunn, 1997 ABCA 35 , [1997] A.J. No. 44, 113 C.C.C. (3d) 174; Gerein, supra; and Glowach, supra.

[ 103 ] In this case, the accused ran away once he saw that the officers had arrived and stopped their vehicle behind his, after having pursued him to that location in an effort to have him stop for them. He was well aware of the pursuit. He, however, continued his flight from police by running away and thereby resisted and tried to prevent the officers from carrying out their duty. He also refused to give up his hands after having been repeatedly asked to do so during the course of the arrest, which clearly also amounted to resisting the officers. [ 104 ]

Section 129(

a) requires that an officer be in execution of their duty at the time the alleged offence arose. As the Alberta Court of Appeal held in Gunn , supra , at paragraph 25, “more is required than merely being ‘on duty’”. In this case, pursuing and arresting an individual who is suspected of committing a number of offences is certainly “in the execution of duty” by any standard. This element is also met. [ 105 ] Accordingly I am satisfied that the Crown has proven beyond a reasonable doubt the charge of resisting the constables in the execution of their duty by running away and refusing to give up his hands contrary to s. 129 (

a) of the Criminal Code as charged. V. CONCLUSION [ 106 ] In

summary, I find the accused guilty on all charges. ___________________________________ A. Crugnale-Reid, J