Her Majesty the Queen - v. -, 2021 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 56 Date: November 17, 2021 Information: 991120945 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nathon Wirll Appearing: Matthew Kerr For the Crown Brendan Pyle For the Accused JUDGMENT M. HINDS, J INTRODUCTION [ 1 ] A trial was held before me on November 1, 2021 respecting the accused, Nathon Wirll who is charged that on or about September 7, 2019 he did operate a motor vehicle while being pursued by a peace officer and did fail, without lawful excuse, to stop the motor vehicle as soon as is reasonable in the circumstances contrary to

section 320.17 of the Criminal Code . I reserved my decision after hearing argument from the Crown and defence. This is that decision.

[ 2 ] The following witnesses testified on behalf of the Crown: Cst. Jonathon Cooper and Cst. Evan Radom. Nathon Wirll testified in his own defence as did his mother, Linda Wirll and Alissa Hall the mother of his young child. [ 3 ] The sole issue at trial is identity. In this case this involves a determination of the credibility and reliability of key witnesses. For the reasons which follow I find that the Crown has not proved beyond a reasonable doubt that Nathon Wirll was the driver of a motor a vehicle which sped away from police on September 7, 2019. As a result, I find him not guilty.

Crown Evidence [ 4 ] Cst. Cooper was on duty in a marked police vehicle on September 7, 2019. At 6:31 p.m. he received a call for service with respect to a possible impaired driving investigation regarding two males who had been at Moxie’s Restaurant in the east end of Regina. The information received was that they left in a white Chevrolet Camaro. [ 5 ] Cst. Cooper was proceeding eastbound on Victoria Avenue near the intersection of Park Street when he saw a white Camaro going westbound on Victoria Avenue. He did a U-turn.

He observed that the white Camaro was stopped at the intersection of Victoria Avenue and Park Street and was located in the southbound turning lane. He brought his police vehicle to a stop beside the white Camaro in the through lane. Cst. Cooper’s driver’s side window was rolled down as was the passenger side window of the Camaro. He estimates he was 8 to 10 feet away from the driver of the Camaro. [ 6 ] Cst.

Cooper testified that he had a clear unobstructed view of the passenger and the driver of the Camaro while he was parked beside it for between 45 to 60 seconds. [ 7 ] When his police vehicle first pulled up beside the Camaro he observed that both male occupants were laughing at something. The driver and front seat passenger looked over at Cst. Cooper for a period of time and then looked forward and began to talk to each other. He estimates that he looked at the driver of the Camaro for 15 to 30 seconds. Cst.

Cooper observed that the face of the driver of the Camaro was unshaven, he had shorter hair, was wearing a red ball cap and had red glossy eyes. [ 8 ] On cross-examination Cst. Cooper testified that the driver was wearing black clothing and a red hat. He could not recall any details regarding the black clothing that the driver was wearing. [ 9 ] Cst. Cooper could not recall what the passenger was wearing. Nor could he describe the facial features of the passenger. He described the passenger as being groggy, laid back in the front passenger seat in a reclined position and looked “out of it”.

He thought the passenger’s actions made him look intoxicated. [ 10 ] When the Camaro made a left turn onto Park Street going southbound Cst. Cooper activated the lights and siren of the police vehicle and also made a left turn behind the Camaro. After the turn onto Park Street the driver of the Camaro accelerated at a high rate of speed and pulled away from Cst. Cooper in the space of one city block. Rather than pursuing the driver of the Camaro, Cst. Cooper deactivated his lights and siren and pulled to the side of the road. Cst.

Cooper relayed a description of the white Camaro bearing licence place 562 LPG to police dispatch and called his superior. While he was at the side of the road Cst. Cooper ran a check on the licence plate and determined that the registered owner of the Camaro was Linda Wirll . He also did a check on a police system and determined that Linda Wirll had a son named Nathon Wirll. He then pulled up multiple photographs of Nathon Wirll from a police database. These photographs confirmed to him that the driver of the Camaro was Nathon Wirll . [ 11 ] Cst.

Cooper also identified the accused in the courtroom as being the driver of the Camaro on September 7, 2019. [ 12 ] Cst. Radom was on duty on September 7, 2019. He and his police partner, Cst. Fleece, were dispatched to a call for service at 2611 Montreal Crescent, Regina at 7:31 p.m. regarding a possible assault. When Cst. Radom arrived at the residence he initially spoke to Alesha Black who let him into the residence. Once inside the house he encountered Alissa Hall who walked into the living room holding a child, Hunter Wirll. Cst. Radom then located a male who was sleeping in a bedroom. Cst.

Radom could not recall what the male was wearing at the time. Cst. Radom woke the male up. He told the police that his name was Jeremy Wirll. Mr. Wirll was observed to smell of alcohol and appeared to be intoxicated. Cst. Radom interacted with Mr. Wirll for ten to fifteen minutes and had a clear view of his face. Cst. Radom concluded that no assault took place that night. A cab was called for Mr. Wirll, who then left the house. [ 13 ] Cst. Radom then went to his police vehicle and searched a police database. He determined the male who had given the name Jeremy Wirll was actually his brother, Nathon Wirll. Cst.

Radom identified the accused in the courtroom as Nathon Wirll.

[ 14 ] Later that evening Cst. Radom was assigned to follow up on Cst. Cooper’s flight investigation regarding a white Camaro, licence plate number 562 LPG said to be driven by Nathon Wirll. As he had previously dealt with Nathon Wirll at 2611 Montreal Crescent, Cst. Radom returned to that address at 11:00 p.m. He found a white Camaro parked at the back of the house near an alley, nosed in behind a garage. Cst. Radom observed that licence plate number 562 LPG was laying on the front passenger floorboard of the vehicle.

He also observed an empty case of beer and approximately eight full beer cans of beer on the floorboard as well. [ 15 ] Later on September 7, 2019 Cst. Cooper went to the home of Linda Wirll, who is Nathon Wirll’s mother. Cst. Cooper spoke to Linda Wirll and Jeremy Wirll. Nathon Wirll was not present. He advised Jeremy that Nathon had used his name to falsely identify himself to police. He advised Linda Wirll that her vehicle had been involved in a police investigation. [ 16 ] On cross-examination Cst. Radom testified that at midnight on September 7, 2019 he went to Moxie’s Restaurant.

He reviewed a surveillance video of the parking lot of Moxie’s Restaurant which showed Nathon Wirll leaving Moxie’s wearing a red shirt about ten to fifteen minutes prior to another male leaving Moxie’s. Cst. Radom also obtained a bill from a Moxie’s server which revealed the two men spent $60.08 for two beer and two double highballs. [ 17 ] He arrested Nathon Wirll on outstanding warrants for his arrest on February 1, 2020. Defence Evidence [ 18 ] Nathon Wirll is 35 years of age. He has a child with Alissa Hall.

He maintains that he was not driving a motor vehicle at any time during the evening of September 7, 2019. [ 19 ] Nathon testified in-chief that on September 7, 2019 he and his friend, Chase Badham, were working on a home renovation project on Osler Street in Regina. They finished work around 5:30 p.m. and decided they wanted to go for a drink. Neither of them had their own vehicle. Nathon called his mother Linda and asked her if they could use her vehicle. Linda agreed. The two men were dropped off at Linda’s home sometime after 5:30 p.m.

As Nathon was a suspended driver, Chase Badham was to drive Linda’s vehicle. Linda gave Chase Badham the keys to her vehicle. Chase Badham drove the vehicle. The two men first went to Stats Bar and Grill where they had some drinks. They then drove around for awhile and then went to Moxie’s Restaurant where they had a few more drinks. The two men left Moxie’s together and got back into the Camaro. Chase Badman was the driver and Nathon was seated in the passenger seat. Nathon testified he was “pretty intoxicated”.

He estimates he had 12 or 13 drinks that evening. [ 20 ] Nathon Wirll also testified in-chief that on that evening he was wearing a red Peterbilt sweater and jeans or sweats. He could not recall what Chase Badham was wearing. [ 21 ] After leaving Moxie’s the two men proceeded westbound on Victoria Avenue and were going to make a turn onto Park Street. They pulled up beside a police officer. Then they pulled a little bit past the police officer. As soon as the traffic light at the intersection turned green, Chase began a left hand turn onto Park Street.

At that time the police officer activated his lights and tried to stop their vehicle. Chase Badman kept driving. They ended up in the driveway located behind Alissa Hall’s home where Chase parked the vehicle. Chad Badman got out of the Camaro, threw the keys to the vehicle in the yard and ran away. Nathon and Chase Badham parted company at this time, which he thought was 7:00 p.m. Prior to this, “during the whole situation” Nathon called Alissa Hall on a telephone and asked her if he could come to her place. Alissa was on her back deck when the Camaro came to a stop behind her home.

Nathon and Alissa got into an argument shortly thereafter. Police came to Alissa’s house. Nathon spoke to the police and he was sent away in a cab. [ 22 ] During cross-examination Nathon Wirll testified as follows : -he and Chase Badham did not get off work around 5:30 p.m., rather he maintained he arrived at his mother’s home at 5:00 p.m.; -he and Chase Badham got off work somewhere between 4:45 and 5:15 p.m.; -he and Chase Badham left Linda’s home around 5:30 p.m. in the Camaro and went to Stats Bar and Grill;

-he thinks they were at Stats for about one hour; -he and Mr. Badham left Stats and drove around for awhile, during this time they both consumed some beers; -he and Mr.

Badham then went to Moxie’s for more drinks; -they were at Moxie’s between one and one and one half hours; -he and Chase Badham walked out of Moxie’s together; -they got in the Camaro and left Moxie’s in the Camaro; -Chase was driving westbound on Victoria Avenue and came to the intersection of Park Street where he was going to make a turn; -he first notices the police car when they pulled up in behind the police car which was sitting still (stopped) at the lights; -they moved ahead of the police car, which was then a car length behind them; -he did not agree with the suggestion that the Camaro was stopped at the intersection of Victoria Avenue and Park Street and the police car came up beside them; -however, he stated that when the light changed to green we were in the left turning lane and passed by the police car which was to his right in the straight lane; -the police vehicle then turned in behind us and followed us around the turn; -he noticed the police car lights turn on and he agreed the Camaro sped up; -he also heard a quick siren, just a bloop, not a constant siren; -he agreed that it looked like the police car was trying to pull them over, however, they took off in the Camaro; -he agreed the police car stopped pretty quickly; -he called Alissa Hall while this was happening; -she told him not to come to her home, they went there anyways; - he was so intoxicated he needed help out of the Camaro ;

-he had some outstanding charges in relation to Alissa Hall and was on court conditions not to be around her on September 7, 2019; -he and Alissa got into an argument about his drinking and him not supposed to be at her home; -he was let into the house and passed out in a room; -the next thing he recalls is being shaken awake by the police; -he admits he did not tell the police about the flight; -he admits he lied about his name to the police, he gave police the name of his brother because he wasn’t supposed to be with Alissa Hall; -during the evening of September 7, 2019 he was wearing a purplish-red Peterbilt hoodie and blue jeans or black sweats; -he’s not sure if he was wearing a hat on September 7, 2019; -he did not take the licence plate off the Camaro; -he did not see anyone else take the licence plate off the Camaro.

Linda Wirll [ 23 ] Linda Wirll is 59 years of age and is the mother of Nathon Wirll. [ 24 ] On September 7, 2019 Linda Wirll was the owner of a Chevrolet Camaro (licence plate number 562 LPG) which she has since sold. On September 7, 2019 her son, Nathon asked if his friend Chase could borrow the vehicle so that the two of them would go out and return it later. At that time she was aware that Nathon was a suspended driver and could not drive a vehicle. She knew Chase was a friend of both of her sons and had met him previously. After confirming he was a licenced driver she allowed Chase to drive the Camaro.

She got the Camaro back, but was not sure when that happened. Alissa Hall [ 25 ] Alissa Hall is 27 years of age. In 2018 she and Nathon Wirll had a brief romantic relationship. Together, they have a 2 ½ year old son, named Hunter. [ 26 ] On September 7, 2019 sometime before 6:00 p.m. she recalled receiving a call from Nathon who was quite intoxicated. Nathon told her that he and a friend were going to come to her house because they had a run in with the police. She told Nathon that this was not a good idea. [ 27 ] Alissa Hall was sitting outside on her backsteps having a cigarette.

She heard and saw a car pull up from an alleyway and come to a stop in a driveway behind her house. She walked towards the car. She observed Nathon Wirll to be in the passenger seat of the car.

She went to the passenger side of the vehicle. She observed that a friend of Nathon’s was driving the vehicle. The friend pulled the keys out of the ignition, got out of the driver’s side of the car, tossed his keys at her and said that he had to go. The friend then ran down the alley. [ 28 ] Alissa Hall had to physically help Nathon out of the passenger seat of the vehicle. He was heavily intoxicated. He could barely walk. She had to escort him into the house. He initially laid down on her couch in the living room. She and Nathon had an argument. He wanted to take Hunter out of the house.

She begged and pleaded with Nathon not to take Hunter out of the house. [ 29 ] Nathon then went into Alissa’s bedroom and laid down on her bed. Her next recollection was seeing police officers inside the porch of her house. The police talked to Nathon and told him he had to leave. Nathon left the house in a cab. The police then left the house. [ 30 ] The police returned to her house later that night between 10:00 and 11:00 p.m.

She went to the backyard of her house and gave the police the keys for the vehicle which was subsequently towed away. [ 31 ] During cross-examination Alissa Hall testified as follows: -when the police showed up at her house she agreed that she knew Nathon was not allowed to have contact with her; -she did not tell the police this; -she did not tell the police Nathon was in the house, the police found him; -she did not take the licence plate off the Camaro; -she did not see anyone else take the licence plate off the vehicle; -she did not know the person driving the vehicle; -she maintained that Nathon was not driving the vehicle on September 7, 2019; -on September 7, 2019 Nathon was subject to a no contact clause with respect to her; -she recalls having some charges against Nathon; -she recalls these charges being set for trial; -she recalls speaking to a prosecutor about these charges; -she recalls telling the prosecutor that she was not going to show up at the trial even if she was subpoenaed and that she did not want to testify ;

-she said the charges against Nathon in relation to her were stayed.

Summary of the Evidence [ 32 ] In this case Cst. Cooper testified about the events of September 7, 2019 and in particular provided eyewitness testimony in which he identified Nathon Wirll as being the driver of a white Camaro which sped away from him. This identification evidence was based upon Cst. Cooper’s viewing of photographs of Nathon Wirll on a police database shortly after seeing the driver of the Camaro for over 30 seconds at a stop light. On the other hand, Nathon Wirll testified that he was not the driver of the white Camaro.

He maintained his friend, Chase Badham was the driver of the Camaro which sped away from police. Linda Wirll testified that she lent her Camaro to Nathon’s friend Chase to drive that evening. Alissa Hall testified that an unknown friend of Nathon’s was driving the Camaro when it arrived at her home. She maintained that Nathon was seated in the front passenger seat of the Camaro when it came to a stop at her home. The Law [ 33 ] As there are different accounts as to who was the driver of the Camaro that evening and in particular at the time it sped away from Cst.

Cooper the Court must carefully assess the credibility and reliability of all the witnesses’ evidence. [ 34 ] Recently in R v Allary , 2021 SKCA 110 Mr. Justice Tholl stated as follows at paragraph 35: When an accused testifies in their own defence, and their testimony differs significantly from another witness's testimony, credibility issues arise and the principles from W.(D .) are engaged.

In W.(D.) , Cory J. — in what is likely the most frequently cited passage in Canadian criminal law jurisprudence — stated the following regarding the analysis that should be brought to bear in such a circumstance (at 757-758): Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 35 ] I am also mindful of the case law which warns of the inherent frailties of eyewitness testimony and the need of the trial judge to consider the reliability and not just the credibility of identification evidence.

There are numerous cases in which well-intentioned and honest witnesses have simply been wrong in identifying an accused. This case law is set out in great detail by Madam Justice Jackson of the Saskatchewan Court of Appeal in R v Bigsky , 2006 SKCA 145 , 289 Sask R 179 [ Bigsky ] . [ 36 ] In Bigsky , Madam Justice Jackson J.A. set out the approach to be employed by an appellate court when considering whether a trial judge has adequately addressed the frailties of eyewitness evidence as follows at paragraph 41: [41] In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (

i) whether the trial judge can be taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent to which the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown's case depends on the eyewitness's testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and (

v) whether there is other evidence which may tend to make the evidence unreliable, i.e., the witness's evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony. [ 37 ] The credibility and reliability of the witnesses testifying before the Court is always important for a judge to consider. On this point, I am reminded of the words of my brother Judge Schiefner in R v Bird , 2021 SKPC 41 at paragraphs 45-47 :

[45] It is a fundamental principle of criminal law that the Crown must present evidence to the Court to establish each element of theoffence and that such evidence must provide proof beyond a reasonable doubt. If the Crown cannot discharge this burden, I must acquit.If there is evidence inconsistent with guilt and I accept that evidence, I must also acquit. If, after hearing all the evidence, I am left inreasonable doubt by it, I must acquit. In a criminal trial, the burden never shifts from the Crown to prove its case and to do so beyond areasonable doubt.

See: R v W. (D.), (SCC), [1991] 1 SCR 742 [W.(D.)] at pages 757-58. [46] Before I set forth my findings of fact, I will note that credibility was central to my findings. Credibility is concerned with a witness’veracity. It’s about a witness’s honesty — their willingness to tell the truth without amplification or obfuscation. Credibility is not an allor nothing proposition. A trier of fact may believe all, part or none of a witness’ evidence. Furthermore, a trier of fact may attachdifferent weight to different parts of a witnesses’ evidence. See: R v R. (D.), (SCC), [1996] 2 SCR 291 at para 93.

Seealso: R v Wolff, 2019 SKCA 103 at para 38, 380 CCC (3d) 223. In the end, the central question is whether or not the witness’ evidence isaccurate. [47] A number of factors can be used to assess the accuracy of evidence, including: (

a) the overall likelihood or plausibility of theevidence, (

b) the presence of independent supporting evidence, (

c) consistency of a witness’ evidence with verifiably surrounding events,(

d) the internal consistency of the evidence, and (

e) the demeanor of the witness and the “balance” of his/her evidence. ANALYSIS Cst. Cooper [38] I shall begin my analysis with the evidence of Cst. Cooper. Overall, I found he testified in a straightforward, credible fashion. He responded to the call for service at 6:31 p.m. A short time later he spotted a white Camaro going eastbound on Victoria Avenue notfar from Moxie’s Restaurant. As a result he did a U-turn and pulled up beside the white Camaro which was stopped at the intersectionof Victoria Avenue and Park Street.

I believe him when he says: (1) his driver’s side window was rolled down as was the frontpassenger side window of the Camaro and that from this position he was 8 to 10 feet away from the driver of the Camaro, (2) he wasparked beside the Camaro for between 45 to 60 seconds (3) he saw the driver and passenger in profile and full on (4) he looked at thedriver for 15 to 30 seconds. This look at the driver was more than a quick glance which occurred while the two vehicles were at a stop ashort distance apart. [39] Cst.

Cooper described the driver of the Camaro as an unshaven male who had shorter hair, was wearing black clothing and a redball cap and had red glossy eyes. I find that this description of the driver of the Camaro is quite general and lacks detail. The driver ofthe Camaro was not known to Cst. Cooper. After briefly engaging his lights and siren and following the Camaro onto Park Street forapproximately one city block, Cst. Cooper pulled over. He continued his investigation by running the licence plate on the vehicle anddetermining that the registered owner was Linda Wirll who had a son named Nathon Wirll.

He then pulled up multiple photographs ofNathon Wirll from a police database. After viewing these photographs he was of the view that the driver of the Camaro was NathonWirll. Unfortunately, these photographs were not entered into evidence at the trial. Hence there is no way of comparing thephotographs to the limited description of the driver offered by Cst. Cooper. In addition, I have a concern that a confirmation bias mayhave unintentionally crept into Cst.

Cooper’s eyewitness testimony as a result of viewing the photographs of Nathon Wirll. [40] I also note that despite his proximity to the passenger of the white Camaro Cst. Cooper could not describe the facial features ofthe passenger, nor could he recall what the passenger was wearing. It is interesting to note Cst. Cooper thought the passenger wasintoxicated. Specifically he observed the passenger to be groggy, laid back in the passenger seat and looked “out of it”.

Thisdescription appears to match the observations of Alissa Hall respecting Nathon Wirll who was occupying the passenger seat of thevehicle when it arrived at her home. [41] I also have concerns about the reliability of Cst. Cooper’s eyewitness identification evidence given the observations of Cst.Radom with respect to his review of the surveillance video taken from Moxie’s parking lot on September 7, 2019.

In particular Cst.Radom testified on cross-examination that the video showed Nathon Wirll leaving Moxie’s wearing a red shirt about ten to fifteenminutes prior to another male (possibly Chase Badham) leaving Moxie’s. On the other hand Cst. Cooper testified that the driver of theCamaro, who he identified as Nathon Wirll, was wearing black clothing. [42] Cst. Cooper identified the accused as being the driver of the Camaro in court on November 1, 2021. Cst. Cooper presented as asincere and honest witness. However, I am of the view that little weight can be attached to such in court identification evidence.

As Irecall Nathon Wirll was the only male in the court room at trial, apart from counsel for the Crown and defence.

[43] In many respects the identification evidence in this case is akin to in dock identification, which is of little value. In R v Reitsma, (SCC), [1998] 1 SCR 769 the Supreme Court was in agreement with the minority reasons given by Madam JusticeRowles in the British Columbia Court of Appeal. In R v Reitsma (1997), 125 CCC (3d) 1 at para 59 (BCCA), Justice Rowlescommented on the value of in dock identification as follows: [59] The identification of an accused person for the first time "in the dock" is generally regarded as having little weight.

In a dockidentification the witness is obviously not required to pick out the person whom he claims to have seen from among a number of otherpersons of similar age and size and general physical appearance. In a courtroom identification there is also the danger of the witnessanticipating that the offender will be present. That danger is accentuated when an accused is readily identifiable in the courtroom as theperson accused of the crime.

Identification of an accused for the first time in the dock is analogous to a police "show up" in which theonly person shown to the identifying witness is the suspect, and for that reason it is open to the same criticism. Generally, anythingwhich tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing ordestroying the value of the identification evidence. [44] The evidence reveals that the police located Nathon Wirll inside Ms. Hall’s residence shortly after 7:31 p.m. At 11:00 p.m. policefound the Camaro parked in the back driveway of Ms.

Hall’s residence. Ms. Hall clearly testified that sometime around 6:00 p.m. a friendof Nathon’s was driving the Camaro, parked it in her back driveway and took off on foot. According to Ms. Hall, Nathon was thepassenger in the Camaro. I am of the view her evidence tends to support Nathon’s evidence that he was the passenger in the Camaro. [45] For the reasons I have set out above I find Cst. Cooper to be a credible witness, however, I have concerns about the reliability oraccuracy of his eyewitness identification testimony.

Nathon Wirll [46] Overall I found Nathon Wirll testified in a less than straightforward manner. There were times during his testimony whenNathon Wirll demonstrated his willingness to break the law; he had contact with Alissa Hall contrary to a non-contact condition andprovided a false name to the police. I am of the view that these actions reflect somewhat negatively upon his credibility. [47] I do believe that Nathon and his friend Chase Badham went to Linda Wirll’s house after work to borrow her white Camaro. I alsobelieve that initially Chase Badham was driving the Camaro.

This evidence is corroborated by Linda Wirll, who I found to be a credibleand reliable witness. I am less certain about who was driving the Camaro later in the evening. [48] I do have some very serious concerns about the reliability of Nathon Wirll’s testimony. This is very likely in part a result of himbeing intoxicated on September 7, 2019 having consumed 12 or more beers after work. There are several examples of Nathon Wirll’stestimony being inaccurate. In the first place his time line of the events of September 7, 2019 was contradictory on cross-examination.

According to Nathon, he and Chase Badham left Linda Wirll’s house around 5:30 p.m. Thereafter they went to Stats for about one hourwhich would have them leaving that establishment around 6:30 p.m. Following that they drove around and went to Moxie’s where theyspent between one and one and one half hours. This account would have them leaving Moxie’s sometime after 7:30 or 8:00 p.m. Thistimeline does not accord with Cst. Cooper’s testimony (who I prefer on this point) regarding his encounter with the white Camaro shortlyafter a call for service at 6:30 p.m. In addition Mr.

Wirll’s time line does not accord with Cst. Radom’s testimony (who I prefer on thispoint) that he dealt with Nathon Wirll shortly after 7:31 p.m. at Alissa Hall’s residence. [49] Secondly, Nathon Wirll also claimed that he and Chase Badham left Moxie’s together. I prefer the evidence of Cst. Radom onthis point. Cst. Radom reviewed a surveillance video of the parking lot of Moxie’s which showed Nathon Wirll leaving there ten tofifteen minutes prior to another male leaving the restaurant. [50] A third example of Nathon Wirll’s testimony being inaccurate concerns his recollection of the encounter with Cst.

Cooper at theintersection of Victoria Avenue and Park Street. Mr. Wirll testified in-chief that he and Mr. Badham pulled up beside a police officer atthis intersection. He testified that they pulled a little bit past the police officer and made a left turn onto Park Street. Mr. Wirll’s accountchanged on cross-examination. He stated that he first noticed the police car when they pulled up behind the police car which wasstopped at the lights. He said they moved ahead of the police car, which was then a car length behind them. On this point I prefer thetestimony of Cst.

Cooper who was sober and stated that the Camaro was stopped at the intersection of Victoria Avenue and Park Streetin the left turning lane and that he came to a stop beside the Camaro in the through lane.

[ 51 ] Throughout his testimony, Nathon Wirll maintained he was not driving the white Camaro that evening. He says his friend, Chase Badham was the driver who sped off from police, drove to Alissa Hall’s residence, parked the vehicle, threw away the keys to the vehicle and ran away. Mr. Wirll also maintains he was the passenger and he was so intoxicated when he reached Ms. Hall’s residence he needed help out of the Camaro. Alissa Hall [ 52 ] I found Alissa Hall testified in a straightforward manner regarding her dealings with Nathon Wirll immediately prior to and at the time he arrived at her residence.

I believe her when she says she told Nathon Wirll not to come to her residence and that he did, despite her objection. I am less certain about the truth of her account that an unknown friend of Nathon’s was driving the Camaro, parked it, got out of it, tossed her the keys to the vehicle and ran off. [ 53 ] I also found that Ms. Hall appeared to be protective of Nathon Wirll. This is illustrated by her behaviour when the police were in her home responding to a call for service. Ms.

Hall admitted on cross-examination that when the police showed up at her house she knew Nathon was not allowed to have contact with her, however she did not share this information with the police. Nor did she tell the police that Nathon was in the house. After police found him it appears she went along with Nathon’s lie that he was Jeremy Wirll.

There is also evidence before the Court that on a previous occasion respecting charges she had against Nathon Wirll she told a prosecutor that she was not going to the trial even if she was subpoenaed and that she did not want to testify. [ 54 ] Despite these shortcomings, I am, however, unable to conclude that Ms. Hall has perjured herself as to who was the driver of the Camaro. [ 55 ] In this case, I do not believe the evidence of the accused Mr. Wirll that he was not the driver of the Camaro and as a result I am not obliged to acquit him. As I have stated I find Mr.

Wirll’s evidence lacked some credibility and was not particularly reliable. Nor am I left with a reasonable doubt by Mr. Wirll’s evidence alone on this point. [ 56 ] I find myself in the position that having considered the evidence as a whole as set out above, I am left with a reasonable doubt as to whether Nathon Wirll was the driver of the white Camaro which sped away from Cst. Cooper on September 7, 2019. [ 57 ] As I have previously said I find Cst. Cooper to be a credible witness, however, I have concerns about the reliability of his eyewitness identification testimony.

I am of the view that evidence provided by Nathon Wirll and the testimony of Linda Wirll, albeit in relation to events occurring prior to the alleged offence, when coupled with the evidence of Alissa Hall, albeit regarding in relation to events occurring after the alleged offence, leave me with a reasonable doubt as to the identity of the driver of the Camaro when it sped away from Cst. Cooper. As a result I am not satisfied that the Crown has proved beyond a reasonable doubt that Nathon Wirll was driving the Camaro when it sped away from Cst. Cooper. CONCLUSION [ 58 ] In

summary I find the accused, Nathon Wirll not guilty of the offence contrary to

section 320.17 of the Criminal Code . ______________________________ M. Hinds, J