Her Majesty the Queen - v. -, 2014 SKPC 198

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 198 Date: November 21, 2014 Information: 90002590 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mitchell James Shalansky Appearing: Mr. D. Davidson For the Crown Mr. B. Hrycan For the Accused TRIAL DECISION M.

HINDS , J INTRODUCTION [ 1 ] Mitchell James Shalansky is charged that on or about the 29th day of June A.D. 2013, at or near Regina, Saskatchewan, he operated a motor vehicle while (1) impaired by alcohol or drug, (2) over .08, and (3) being pursued by a peace officer, in order to evade the peace officer, contrary to sections 255(1) , 253(1) (a), 253(1)(

b) and 249.1(1) of the Criminal Code . [ 2 ] The Crown argues that Mr. Shalansky was the sole occupant and driver of a motor vehicle which was speeding through the

streets of Regina and evading the police. The Crown contends that after extensive efforts, the police apprehended Mr. Shalansky and that he should be convicted of the offences before the Court. [ 3 ] The Defence argued that Mr. Shalansky was not the driver of the motor vehicle. Rather Mr. Shalansky was a passenger in the motor vehicle which had been driven by a friend named “Cody”. [ 4 ] In this case I have determined that I did not believe all of the evidence provided by Mr. Shalansky. However, on the whole of the evidence before me, I am left in reasonable doubt respecting the identity of the driver.

As a result I find that Mr. Shalansky is not guilty of the charges before the Court. FACTS [ 5 ] Lindsay Eyre is 21 years of age and is a resident of Regina, Saskatchewan. On June 28, 2013, Ms. Eyre had taken her silver coloured Acura motor vehicle, Saskatchewan licence plate number 614 IAU to Regina Beach, Saskatchewan where she was drinking alcohol with some friends. Ms. Eyre wanted to get her vehicle back to Regina, however, she decided she should not drive the vehicle herself. Ms. Eyre testified that she had been advised by a friend that Mr. Shalansky had not been drinking alcohol.

As a result, around midnight she gave the keys to her car to Mitchell Shalansky for the purpose of driving her car back to Regina. She testified on cross- examination that when she gave Mr. Shalansky the keys to her car, he was with another person named Cody. [ 6 ] Corporal Jody Lorence is a canine handler with the Regina City Police and was qualified as an expert in the actions of police dog “Kruz” (sp) and in tracking. Corporal Lorence testified that just before 1:30 a.m. on June 29, 2013, he and Kruz were in a police vehicle doing general patrol work.

Corporal Lorence was heading in an eastbound direction on Donahue Avenue approaching the intersection of Pasqua Street on a solid green light when he observed a small silver coloured Acura motor vehicle go southbound through a solid red light at highway speed. Corporal Lorence testified that the area in question was a residential neighbourhood and has a speed limit of 50 kmph. He felt the Acura presented a danger to public safety and as a result he decided to attempt to stop this vehicle.

Corporal Lorence saw only one occupant, the head of the driver. [ 7 ] Corporal Lorence got behind the Acura which continued southbound on Pasqua Street and was approaching Sherwood Drive. Corporal Lorence was about one and one half blocks away from the Acura and attempted to close the distance between the vehicles by accelerating hard. Corporal Lorence testified that although his vehicle was going 100 kmph, the Acura vehicle was still pulling away from him. The vehicles continued southbound. Corporal Lorence decided to activate his siren and police emergency lights and hoped the Acura would slow down.

This had the reverse effect, the driver of the Acura seemed to accelerate harder. [ 8 ] The Acura made a series of highspeed turns, first eastbound onto 1 st Avenue North, secondly southbound onto Pasque Street and thirdly eastbound on McKinley Avenue. Each turn involved squealing tires and sending dust into the air. Corporal Lorence remained behind the Acura. On McKinley Avenue, Corporal Lorence advised dispatch and other police vehicles in the area of his situation and the movements of the Acura. The Acura made another abrupt turn from McKinley southbound onto Elphinstone Street and went out of his sight.

Corporal Lorence attempted to follow the dust put into the air from the Acura. Corporal Lorence proceeded southbound on Elphinstone Street and then eastbound onto 1 st Avenue. He briefly stopped his police vehicle at the intersection of 1 st Avenue and Montague Street where he observed two men. Corporal Lorence asked the two men if they had seen a car come through the area. Both of the men pointed southbound to the 600 block Montague Street. Corporal Lorence saw the dust trail left by the Acura.

Corporal Lorence proceeded southbound on Montague and in a short period of time came to a lane which is adjacent to some railroad tracks. Corporal Lorence then observed some tail lights in the driveway at the back of 645 Montague Street, further up the lane. He determined this vehicle was the silver Acura that had been evading him. The Acura was unoccupied. The Saskatchewan licence plate was 614 IAU. [ 9 ] Corporal Lorence used police service dog Kruz in a tracking capacity. Kruz picked up a scent from the driver’s side and into the yard of 645 Montague Street.

Kruz and Corporal Lorence went through that yard and crossed over to the east side of Montague Street. The two then proceeded southbound in a lane and then proceeded into a yard at 678 Montague and eastbound across the front of houses to 682 Montague. The tracking team proceeded to 1 st Avenue North where Corporal Lorence could see a person a half block ahead of him. Corporal Lorence observed that person to cut through a yard to 700 block Montague. Within a short time Corporal Lorence saw a person approaching him. This person was the accused, Mr. Shalansky.

[ 10 ] Corporal Lorence detained Mr. Shalansky. He told Mr. Shalansky to sit down on the curb of the sidewalk at the intersection of 1 st Avenue North and Montague Street. Mr. Shalansky complied. Corporal Lorence maintained control of Kruz and watched Mr. Shalansky while waiting for other police to arrive. During this time, Corporal Lorence observed that Mr. Shalansky’s left hand moved backwards towards a hedge which was located behind where he was sitting on the sidewalk curb (Exhibit P-3, photograph #5). He also heard Mr.

Shalansky’s hand strike an empty plastic oil can which was situated on the sidewalk very close to where Mr. Shalansky was sitting. [ 11 ] Constable Kyle Bradshaw arrived at the intersection a short time later. Constable Bradshaw and his partner briefly spoke to Corporal Lorence. Corporal Lorence then took Kruz to his police vehicle and left Constable Bradshaw in charge of Mr. Shalansky. At approximately 1:40 a.m., Constable Bradshaw told Mr. Shalansky he was under arrest for evade police and escorted him back to a marked patrol car. Once in the police vehicle Mr.

Shalansky was also advised he was under arrest for impaired operation of a motor vehicle. Constable Bradshaw then advised Mr. Shalansky of his Charter rights and a police warning. Constable Bradshaw subsequently made a breath demand on Mr. Shalansky. The police then transported Mr. Shalansky to the police station. [ 12 ] After Corporal Lorence put Kruz in the police vehicle he went to the hedge which was situated behind where Mr. Shalansky had been sitting. While looking through the hedge, Corporal Lorence found a car fob and keys.

Constable Fraser photographed the hedge containing the fob and keys (Exhibit P-3, photograph #6). Corporal Lorence subsequently confirmed this fob and keys belonged to the silver Acura. The fob unlocked the doors to the Acura. The keys went into the ignition of the Acura and started it. [ 13 ] Corporal Lorence testified in-chief that he could only see one person in the Acura, which was the driver. On cross- examination Corporal Lorence maintained this observation.

Although he conceded that he made this observation at night from a distance of one to one and one half blocks away while pursing the Acura at high speeds. Corporal Lorence also testified on cross-examination that he could not see anyone occupying the passenger seat. He conceded that he could not say that no one was in the passenger seat, however, he added that if a person was in the passenger seat, it would have to have been a short person, whose head was below the head rest of the Acura. [ 14 ] After Mr. Shalansky arrived at the police station he was taken to a telephone room to call a lawyer. Mr.

Shalansky spoke to a Legal Aid lawyer for 10 minutes, from 2:08 to 2:18 a.m. Following an observation period Mr. Shalansky provided two samples of his breath into an Intox/IR II approved instrument. The first blood alcohol reading at 2:43 a.m. was 90 milligrams of alcohol in 100 millilitres of blood. The second blood alcohol reading at 3:03 a.m. was 90 milligrams of alcohol in 100 millilitres of blood. Mr. Shalansky was subsequently arrested for “exceed 08” and was provided with his Charter rights and police warning. Mr.

Shalansky was served with a Certificate of Qualified Technician (Exhibit P-2), released and was driven to a friend’s home by the police. He provided two samples of his breath into an Intox EC/IR II. Constable Bradshaw testified that while Mr. Shalansky was waiting on a bench outside the breath room he heard Mr. Shalansky deny that he was driving a motor vehicle. [ 15 ] Mitchell Shalansky, age 26, testified during the trial. Mr. Shalansky lives at 5133 7 th Avenue, Regina. He testified that on June 28, 2013, he went to Regina Beach with a group of friends to celebrate the Canada Day weekend.

One of these friends was Jeff Steward. He hung out with his friends, enjoyed a BBQ and consumed some vodka at the bar. Around 1:00 a.m. on June 29, 2013, he decided he wanted to go home. He testified that his friend Jeff Steward, approached him and asked him if he could drive. He said that he could. Jeff Steward indicated Lindsay Eyre needed someone to drive her vehicle back to Regina. Mr. Shalansky testified that he took Ms. Eyre’s car keys from her. [ 16 ] Mr. Shalansky testified that after taking the car keys from Ms. Eyre, he decided that he didn’t feel like driving. As a result he asked Cody to drive Ms.

Eyre’s vehicle. Mr. Shalansky explained that Cody was a fellow he met in the bar that day. He did not and does not know Cody’s last name. Mr. Shalansky testified that Cody agreed to drive Ms. Eyre’s Acura to Regina. Mr. Shalansky testified that Cody drove the Acura to Regina and within Regina. Mr. Shalansky testified that he was seated in the passenger seat while in the Acura. Mr. Shalansky further testified that Cody did not slow down as they got into the City of Regina from the highway from Regina Beach. Mr.

Shalansky testified that he realized the police were behind the Acura when the police lights were activated. He said Cody chuckled. Mr. Shalansky recalls that Cody made several sharp turns. Mr. Shalansky said he was nervous. Mr. Shalansky testified that around Elphinstone Street in Regina “we ditched the car”. Mr. Shalansky says he ran from the car with Cody for a bit and then realized he had left his cell phone in the Acura. Mr. Shalansky says that he then asked Cody for the car keys. He said that Cody gave him the car keys which he had on him when he ran into Corporal Lorence. [ 17 ] On cross-examination Mr.

Shalansky testified that he stopped running from the police because he knew his cell phone was in

the Acura. Instead of continuing to run with Cody, he decided to give himself up to the police. When asked why he did not tell the police about Cody, Mr. Shalansky testified “I’m just not that type of person.” He explained that he initially ran from the Acura because he was intoxicated at the time and he has never had good dealings with the police before. When asked why he attempted to get rid of the Acura keys, Mr. Shalansky testified that “I threw the keys behind me because I thought they would pin me as the driver.” ISSUE [ 18 ] The issue to be dealt with at the trial is as follows: 1.

Has the Crown proven beyond a reasonable doubt the identity of the accused as being the driver of the Acura motor vehicle which was being pursued by Corporal Lorence on June 29, 2013? ANALYSIS [ 19 ] The burden of proof is on the Crown to prove beyond a reasonable doubt that Mitchell Shalansky was the driver of the Acura motor vehicle on June 29, 2013. [ 20 ] In this case the Crown’s identification evidence was provided by Corporal Lorence which can be summarised as follows:

i) Around 1:30 a.m. he observed a small silver coloured Acura motor vehicle go through a red light at highway speed at the intersection of Donahue and Pasqua Street in Regina. ii) Over the next several minutes he pursued the Acura motor vehicle through the streets of Regina. The Acura motor vehicle was driving at speeds in excess of 100 kmph. During the pursuit he was varying distances away from the Acura. At times he was about one and one half blocks away from the Acura. At other times he temporarily lost sight of the Acura. iii) He could only see one person in the Acura, the driver.

He could not see anyone occupying the passenger seat. However, he could not say that no one was in the passenger seat. He added that if a person was in the passenger seat, it would have to have been a short person, whose head was below the head rest of the Acura. iv) He found the Acura abandoned at the back of 645 Montague Street. He worked with police service dog Kruz to attempt to track the driver of the Acura. He and Kruz tracked the scent of the driver for several minutes in the area of 600 and 700 blocks of Montague Street.

The tracking team proceeded to 1 st Avenue North where Corporal Lorence could see person a half block ahead of him. Corporal Lorence observed that person to cut through a yard to 700 block Montague. Within a short time Corporal Lorence saw a person walking toward him. This person was the accused, Mr. Shalansky.

v) He told Mr. Shalansky to sit down on the curb of the sidewalk at the intersection of 1 st Avenue North and Montague Street. Mr. Shalansky complied. Mr. Shalansky had the fob and keys to the Acura on him. He attempted to get rid of the fob and keys by throwing them into a hedge which was behind him. Corporal Lorence saw Mr. Shalansky make a backwards motion of his arm while he was seated on the curb. Corporal Lorence subsequently located the Acura fob and keys in the bush.

Based on this evidence, the Crown invites the Court to infer that Mitchell Shalansky was the sole occupant and driver of the Acura motor vehicle. [ 21 ] The Court must also consider the evidence of Mr. Shalansky at trial. Mr. Shalansky’s evidence can be summarised as follows:

i) He was at Regina Beach on June 28, 2013. He was partying with friends and drinking some alcohol. ii) Around 1:00 a.m. on June 29, 2013, he decided he wanted to go to his home in Regina. His friend Jeff Steward approached him andasked him if he could drive Lindsay Eyre’s vehicle to Regina. He said that he could. Ms. Eyre gave him the keys to the Acura motorvehicle. A fellow named Cody was with him. He met Cody at the bar earlier that day. He has not seen or spoke to Cody since the earlymorning hours of June 29, 2013. iii) After taking the Acura keys from Ms. Eyre he decided that he didn’t feel like driving.

He asked Cody to drive Ms. Eyre’s vehicle toRegina. Cody agreed to drive Ms. Eyre’s Acura to Regina. Cody drove the Acura to Regina and within Regina. Mr. Shalansky sat inthe passenger seat of the Acura. Cody did not slow down as they got into the City of Regina from the highway from Regina Beach. Mr.Shalansky realized the police were behind the Acura when the police lights were activated. Cody chuckled and made several sharpturns. iv) He and Cody ditched the car somewhere around Elphinstone Street in Regina. Both he and Cody ran away from the Acura.

He thenrealized he had left his cell phone in the Acura and decided to surrender himself to police. He obtained the Acura keys from Cody beforeleaving him. He then walked towards Corporal Lorence who detained him.

v) He did not tell the police about Cody because “I’m just not that type of person.” He initially ran from the Acura because he wasintoxicated at the time and he has never had good dealings with the police in the past. He threw the Acura keys behind him into a bushbecause he thought the police would suspect that he was the driver of the Acura. [22] The evidence of Ms. Eyre confirms that a person named Cody was with Mr. Shalansky when she gave Mr.

Shalansky thekeys to her Acura in Regina Beach. [23] The evidence of Constable Bradshaw confirms that in the early morning hours of June 29, 2013, the police were aware that Mr.Shalansky denied driving the Acura. [24] In this case I have applied the test set out by Mr.

Justice Tallis of the Saskatchewan Court of Appeal in R v McKenzie, (SK CA), [1996] SJ No 197 at para 4, (1996) 141 Sask R 221 (CA) respecting the doctrine of reasonable doubt as it appliesto the issue of credibility and reliability of witnesses, which is as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [25] Applying step one of the test I do not believe all of the evidence of the accused, hence I am not obligated to acquit him.

In thiscase I do believe some of the evidence of the accused. I believe that he was at Regina Beach on July 28, 2013 and that he was with somefriends and had been consuming alcohol. I believe Mr. Shalansky drank too much alcohol on July 28, 2013 and was impaired. I believethat he received the keys to Ms. Eyre’s Acura and agreed to drive it to Regina. I believe that a person named Cody was with Mr.Shalansky when he received the keys to the Acura. However, I do not believe Mr. Shalansky’s evidence that Cody drove the Acura.

However, I am left in reasonable doubt by this evidence respecting the identity of the driver when coupled with the identificationevidence of Corporal Lorence. [26] In my view, a number of Mr. Shalansky’s actions once the Acura came to a stop in the alley are inconsistent with being theinnocent passenger he claims to be. [27] Rather than remain in the passenger seat of the Acura or near the Acura when it came to a stop, he ran from the Acura so as toavoid the police. He also remained on the run from Corporal Lorence for several minutes before deciding to surrender himself.

Mr.Shalansky attributes these actions to his intoxication and his past negative encounters with police.

[ 28 ] Mr. Shalansky’s decision to surrender himself is based on his assertion that he left his cell phone in the Acura and his reasoning that the police were going to connect him to the Acura. Why he obtained the keys to the Acura from Cody is another matter. Perhaps it was the result of his poor judgment. Perhaps it was for the purpose of opening the doors (if locked) to the abandoned Acura or returning the keys to Ms. Eyre. Mr. Shalansky offered the Court little to no explanation.

It is difficult to understand why the passenger of a vehicle being driven by another who was being pursued by the police would choose to obtain the keys to the car before surrendering himself to the police. This action along with subsequently attempting to get rid of the keys negatively affect Mr. Shalansky’s credibility. [ 29 ] That being said, the evidence of Corporal Lorence identifying Mr. Shalansky as the driver of the Acura does not satisfy the criminal law standard of proof beyond a reasonable doubt. Corporal Lorence could not rule out the possibility of more than one occupant of the Acura.

He could not provide a description of the driver. In addition, he was unable to track the driver after the vehicle was abandoned. While Mr. Shalansky was in the tracking area, it was Mr. Shalansky who walked up to Corporal Lorence and surrendered himself. [ 30 ] In this case I have a reasonable doubt that Mr. Shalansky was the driver of the Acura. Accordingly I find the accused not guilty of the charges before me. ____________________________________ M. Hinds, J