R. v. Fonseca Date:, 2012 BCPC 13

Citation: R. v. Fonseca Date: 20120118 2012 BCPC 0013 File No: 5597-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FREDERICO FERREIRA FONSECA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H.K. DHILLON Counsel for the Crown: M. Myhre Counsel for the Defendant: B. Jackson Place of Hearing: Vancouver, B.C.

Dates of Hearing: October 28, 2011 & November 15, 2011 Date of Judgment: January 18, 2012 Introduction [ 1 ] Frederico Ferreira Fonseca is charged with: Count 1: on or about the 19 th day of April, 2010, at or near Vancouver, in the Province of British Columbia, did operate a motor vehicle, in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place, contrary to Section 249(1) (

a) of the Criminal Code . Count 2: on or about the 19 th day of April, 2010, at or near Vancouver, in the Province of British Columbia, while operating a motor vehicle pursued by a peace officer operating a motor vehicle, did fail, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as was reasonable in the circumstances, contrary to

Section 249.1(1) of the Criminal Code . [ 2 ] The prosecution presented evidence from five police officers and two civilian witnesses. Mr. Fonseca testified in his defence. [ 3 ] It is the theory of the prosecution that Mr. Fonseca failed to pull over and stop his motorcycle when motioned by a traffic enforcement officer to do so for speeding. Moreover, he fled from the officer and evaded other pursuing officers until he was involuntarily brought to a stop by a police road block. The Crown contends that on the whole of the evidence Mr.

Fonseca’s manner of driving was objectively dangerous and his continued driving while being pursued by police meets the elements of the offence of evading a police pursuit under count 2. [ 4 ] Mr. Fonseca’s identity is not in dispute. He was operating his motorcycle in Vancouver on the date in question. He admits he was at times driving over the speed limit. However, he contends that the Crown’s evidence is insufficient to support a dangerous driving

conviction, and the evidence as a whole raises a reasonable doubt as to his guilt on the charge of evading a police pursuit. Evidence and Analysis [ 5 ] The events in question unfolded over a period of several minutes, starting with the initial encounter between Mr. Fonseca and Cst. Shaw in traffic enforcement, and his later apprehension by police. [ 6 ] The geographic area over which Mr. Fonseca travelled is the Strathcona neighbourhood of Vancouver, roughly bounded by Raymur Street and Glen Drive on the east, Jackson Avenue on the west, Cordova Street to the north and Malkin Avenue to the south.

Generally described, this area is mixed residential and commercial with light industrial to the south. [ 7 ] The evidence establishes that on April 19, 2010 at around 6:30 p.m. Mr. Fonseca was operating a motorcycle proceeding westbound on Prior Street when his rate of approach came to the attention of traffic enforcement officer Cst. Steven Shaw. The officer was standing somewhat concealed to approaching westbound motorists and he determined that Mr. Fonseca was travelling at about 75 - 80 km/h in a 50 km/h speed zone when seen from a distance of one block away. [ 8 ] Cst.

Shaw emerged from his location and moved quickly and briskly onto the westbound lanes of Prior Street with his arm stretched out. Cst. Shaw was wearing a high visibility traffic vest. He put himself squarely and in the direct line of the oncoming motorcycle. He raised his arm shoulder level with his palm vertical towards Mr. Fonseca and motioned for him to stop. [ 9 ] Mr. Fonseca slowed on approaching the officer now standing in the middle of the street. However, he did not fully or completely stop. [ 10 ] Cst.

Shaw testified that, on seeing the motorcycle slow down to less than 10 km/h when it was 10 - 20 metres away, he had every reason to believe the motorcycle was going to stop. The operator did not do so. [ 11 ] Cst. Shaw made eye contact with the operator who was wearing a helmet with a clear visor. [ 12 ] Cst. Shaw is himself an experienced motorcyclist. He testified that he heard the slowing motorcyclist rev the engine a minimum of 3 times. This was completely out of the norm for a stopping motorcycle. He testified that the operator released the clutch and launched the bike forward towards him. Cst.

Shaw instinctively turned sideways to avoid the moving motorcycle from striking him as it passed. He felt a slight sensation in his stomach area, and believes that the mirror of the bike may have very lightly brushed against his shirt. [ 13 ] As soon as the motorcycle passed, Cst. Shaw immediately began to broadcast to other police units the description of the motorcycle, its direction of travel and that it had nearly clipped him. [ 14 ] In cross examination Cst. Shaw agreed that a rate of 70 km/h is not an unusual speed for a motorist on that stretch of Prior Street.

In fact, he had chosen that area for a “speed trap” because of the consistency of speeding motorists passing through the area. [ 15 ] He also agreed that it was evening rush hour on a road which had moderate westbound traffic. There was no approaching vehicle in front of the motorcycle when he moved onto the centre of the roadway. He also agreed that at 78 km/h Mr. Fonseca would have covered ground quickly to be almost upon him in the few seconds it took for him to emerge from his obscured location and to the middle of Prior Street. Mr. Fonseca would have been within 70 - 80 metres of Cst.

Shaw’s position and approaching. Lastly, Cst. Shaw agreed the passing motorcyclist did not strike him or injure him as a result of his manoeuvre to go around him. [ 16 ] Mr. Fonseca testified that he was proceeding at a speed of 70 - 80 km/h when he saw somebody run out into the street in front of him. He said he was “freaked out” by this and managed to slow to about 30 - 35 km/h. He denied having time to downshift. He did not brake excessively hard because he was afraid of cart-wheeling. [ 17 ] As he weaved around him and looked back, he realized the man was a police officer.

He was in a state of panic because he realized he had almost hit a police officer. He testified he needed time to think because he was wondering what he would say and how he would approach the officer without being arrested or tackled. He did not stop or immediately return to the place of the initial incident for these reasons. He decided to take time to think of his options. [ 18 ] Accordingly, he rode on, following a route which took him in a wide clockwise loop around the Strathcona neighborhood in the course of which the evidence shows he was seen by and at some stages pursued by police. [ 19 ] Mr.

Fonseca denies seeing any officer in pursuit of his motorcycle. He did not hear sirens or see any police vehicle with emergency lights engaged. [ 20 ] After sorting out his thoughts, he decided to make his way back slowly to where he had encountered Cst. Shaw in the course of which he had a minor collision with the rear of a vehicle which had stopped in response to a police blockade. Evidence regarding the Police Pursuit Cst. Robert McCaul [ 21 ] The first officer to spot Mr. Fonseca’s distinctively colored motorcycle was Cst. McCaul who was stopped in a police wagon

facing south towards Hastings Street. He saw Mr. Fonseca in the intersection at Hastings signalling to turn left onto his street. The officer put on his police lights and waved his arm towards the approaching Mr. Fonseca, signaling that he stop. Mr. Fonseca rode by the police van going north in the opposite lane without stopping. By the time Cst. McCaul made a u-turn to follow, Mr. Fonseca was already turning onto Cordova Street to proceed eastbound and out of sight. [ 22 ] Mr. Fonseca testified he saw the police van but not Cst. McCaul’s gestures or the van’s emergency lights being activated. Cst.

Albert Lu [ 23 ] The second officer to see Mr. Fonseca was Cst. Lu. He was in a marked police vehicle at the intersection of Raymur Street facing south towards Cordova when he saw a motorcycle matching the broadcast description approaching on Cordova. Cst. Lu activated his vehicle lights and sirens which he says prompted Mr. Fonseca to look in the direction of his police vehicle. However, the motorcyclist turned right from Cordova onto Raymur and sped away southbound. [ 24 ] Cst. Lu described their respective distances at about 30 feet from one another when he turned on the lights and sirens.

He kept them on for about 10 seconds as he followed until he lost sight of Mr. Fonseca whom he described as having accelerated significantly faster than the police vehicle. Mr. Fonseca went around a curve and out of sight. Cst. Lu said he turned off the lights and sirens because he did not believe Mr. Fonseca would stop and he could not keep up with him. He estimated the police vehicle speed at 50 - 60 km/h and the motorcycle speed at 70 - 80 km/h. [ 25 ] Cst. Lu next saw the motorcycle as it slowed down further south on Raymur Avenue. He was able to close the distance between them to about 60 feet.

He re-engaged police lights and sirens but once again Mr. Fonseca accelerated and sped away out of sight. [ 26 ] The third sighting of Mr. Fonseca was on Glen Drive where Mr. Fonseca pulled over to the side of the road and almost came to a complete stop and turned to look in the direction of the police vehicle. Cst. Lu believed Mr. Fonseca was going to stop and activated the lights and sirens again which caused the motorcyclist to accelerate away. Again, Cst. Lu deactivated the lights and sirens. [ 27 ] While following the motorcycle, Cst. Lu described high rates of acceleration by Mr.

Fonseca followed by slowing down and riding through stop signs without stopping. Cst. Lu could not estimate the actual rate of speed at which Mr. Fonseca was travelling. He agreed that he did not note any vehicle or pedestrian traffic while following the motorcycle over both residential and industrial neighbourhoods. [ 28 ] In cross-examination, Cst. Lu agreed that he only saw the motorcycle for a few seconds each time before losing sight. He agreed that the roads had bends impeding his uninterrupted view of the motorcycle. [ 29 ] He also agreed that this was his first police pursuit.

He understood that on initiating a pursuit he was to assess the risk situation and determine if it was necessary to continue to pursue. He made the decision not to continue engaging lights and sirens on each instance he lost sight of the motorcycle. [ 30 ] Cst. Lu estimated that the total duration of his involvement in following Mr. Fonseca was perhaps about one minute out of which he engaged the police lights and sirens on three occasions for a total period of 15 - 20 seconds. [ 31 ] Mr. Fonseca testified that he did not see Cst. Lu’s vehicle in pursuit of him. He did not hear sirens or see emergency lights.

Cst. Nicholas Wong [ 32 ] The third officer to see Mr. Fonseca was Cst. Wong who was in an unmarked police vehicle at Prior and Malkin. He saw the motorcycle come to a full stop at the intersection, turn right onto Prior and accelerate rapidly to an “illegal speed” by which he meant in excess of the speed limit. It travelled eastbound on Prior. The vehicle traffic then was moderate for 6:30 p.m. By the time Cst. Wong turned on the lights and sirens and began to follow, the motorcycle was out of view.

Very shortly thereafter, he saw the motorcyclist in police custody, having been brought to a stop by a road block. [ 33 ] Mr. Fonseca testified he did not see Cst. Wong’s unmarked police vehicle or notice any lights or sirens. Sgt. Edward Wright [ 34 ] Sgt. Wright blocked off the intersection of Prior and Campbell with his police vehicle on learning that the motorcyclist was headed in his direction. Cst. Shaw soon joined him to look out for the motorcycle. The presence of the police vehicle in the intersection caused traffic on the road to slow and stop. [ 35 ] Mr.

Fonseca slowed down belatedly and came to an abrupt stop striking the motorcycle’s front wheel against the rear bumper of the vehicle operated by Mr. Guzman. Sgt. Wright said it was a slow speed collision with Mr. Fonseca slowing to 10 km/h before impact. [ 36 ] Mr. Guzman testified that he was safely able to bring his vehicle to a stop when Sgt. Wright moved his police cruiser to block the intersection. He noticed in his rear view mirror a motorcycle travelling at a very fast speed. It appeared to want to pass him but was unsuccessful and struck his vehicle. Evidence of Mr. Fonseca

[37] Mr. Fonseca purchased his motorcycle in late December 2009. It had an after market exhaust which amplifies the sound of the600cc engine. He obtained his motorcycle operator’s licence in about March 2010, just a few weeks before the incident. He wascomfortable operating the motorcycle. [38] He testified that his motorcycle engine is very loud which impairs hearing, and ambient sound is also muffled by the padding inhis helmet.

He did agree in cross-examination that he is able to hear the sound of a horn if it is close to him. [39] He admits he was travelling at 70 - 80 km/h on Prior Street before his encounter with Cst. Shaw. After going around the officer,he admits he may have exceeded speed limits at times on his route around Strathcona but not excessively so. [40] He denies driving dangerously, and denies knowing that police officers were pursuing him. [41] As to what started the incident, he recalls that a person ran into the street and startled him. He did not realize who it was.

Mr.Fonseca slowed down to 30 - 35 km/h but did not downshift because he did not have time to do that. He weaved around the man andcarried on. He did not intend to hit him. He then looked back and realized it was a police officer. He did not stop. He continued on andturned off the first street he saw. [42] Mr. Fonseca’s explanation is that he panicked after he realized that he had nearly hit a police officer. He knew he might be introuble. He needed time to think. He cannot say why he did not pull over to sort out his thoughts. [43] As he rode on, he drove by the police van operated by Cst.

McCaul but did not see the officer gesture or wave at him. Althoughhe saw the van head on, he did not see the van’s emergency lights come on. He hypothesized that perhaps, if it was sunny, it might haveaffected his vision. [44] He did not see the police vehicle operated by Cst. Lu at all at Cordova and Raymur or thereafter. He did not hear any sirens orsee any police vehicle with its emergency lights engaged pursuing him on Raymur or on Glen Drive. He denied accelerating away inresponse to pursuing police vehicles or sirens. He says he did not look back because it was difficult to do so.

He did not use his sidemirrors because he prefers shoulder checks. [45] He says he eventually came to his senses and decided to slowly make his way back towards the traffic officer on Prior Street inorder to apologize. Shortly thereafter, he was involved in a collision and taken into custody. Cases Considered R v. W. (D.) (SCC), [1991] 1 SCR 742 R. v. Beatty 2008 SCC 5 R. v. De Ciantis 2011 BCCA 437 citing R. v. Beatty 2008 SCC 5 R. v. Johnson 2004 BCCA 141 R. v. Foos 2010 BCSC 1771 R. v. Gangl 2010 ABPC 105 citing R. v.

Kulchisky 2007 ABCA 110 Legal Principles Burden of Proof [46] The burden of proof rests on the Crown and does not shift. It requires the Crown to prove beyond a reasonable doubt everyessential element of the offence before a finding of guilt can be made. Credibility [47] Where an accused testifies, a verdict must not be based on a choice between the Crown’s evidence and the accused’s evidence. Itmust be based on whether on the whole of the evidence, a judge or jury is left with a reasonable doubt as to the accused’s guilt. Wherean accused testifies, the rule of reasonable doubt as set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, (1991), 63C.C.C. (3d) 397 (S.C.C.) must be applied. Dangerous Driving The Criminal Code defines the offence of dangerous driving in s.249(1)(a): 249.

(1) Every one commits an offence who operates

(

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; [ 48 ] As set out in R. v. Beatty 2008 SCC 5 , [2008] 1 SCR 49 , and referenced in R. v.

De Ciantis 2011 BCCA 437 at para. 31-33 , the actus reus of the offence is concerned with the manner of the accused’s driving and whether it is objectively dangerous to the public, having regard to all of the factors listed in s. 249(1) of the Criminal Code . The consequence of the driving can not be taken into account at this stage of the analysis. [ 49 ] The mens rea of the offence is a marked departure from the standard of care of a reasonably prudent driver in all of the circumstances facing the accused. [ 50 ] In R. v. De Ciantis , supra , the B.C.

Court of Appeal reminded trial judges that the totality of the evidence must establish a marked departure from the civil norm and place the accused’s moral blameworthiness for the risk of harm created by his deliberate conduct squarely at the criminal end of the fault spectrum. [ 51 ] The Crown’s case on dangerous driving at its highest is that Mr. Fonseca was operating his motorcycle at a speed of about 78 km/h on Prior Street when flagged by Cst. Shaw, that he nearly struck Cst.

Shaw and he drove at excessive speeds through a variety of neighbourhoods thereafter. [ 52 ] The Crown evidence establishes that it is not unusual for motorists on Prior Street to attain speeds of 70 km/h or above, making it an attractive “speed trap” for traffic enforcement. [ 53 ] Also on the Crown’s evidence, Mr. Fonseca slowed to 10 km/h before weaving around Cst. Shaw, barely grazing his shirt in the process. [ 54 ] Mr. Fonseca says he was startled by the officer moving suddenly and quickly into his direct line of travel and he reacted by slowing and instinctively going around him.

The officer agreed that he moved quickly in front of an approaching motorcyclist. [ 55 ] On the issue of Mr. Fonseca’s sudden move around Cst. Shaw, I would distinguish the facts here from R. v. Johnson , supra , where the completely stationary motorist moved suddenly and inexplicably into the crosswalk and struck a pedestrian. Here, Mr. Fonseca has provided an explanation as to his reactions and his state of mind on seeing Cst. Shaw in the roadway.

I am persuaded that the officer’s sudden actions would have been startling to any reasonable user of the road, especially so to a motorcyclist who was fearful of braking too hard and losing control of his motorcycle. [ 56 ] The weaving around the officer was explained by the accused as reactive and instinctive. He barely grazed the officer. While it is a close call, I am not able to reject Mr.

Fonseca’s explanation in the face of concessions made by the officer in cross-examination of the suddenness and speed of his movements onto the roadway in attempting to stop the motorcycle. [ 57 ] On the balance of his journey, the totality of the evidence as to Mr. Fonseca’s manner of driving is that he made uneventful turns on Hastings and on Cordova, rolled through some but not all stop signs, slowed down on some occasions and accelerated away at speeds above the 50 km/h speed limit when approached by police. The collision which brought Mr.

Fonseca into police custody was extremely minor and barely caused any material damage to the struck vehicle and resulted in no personal injuries. [ 58 ] In my view, speed is the significant factor on which the Crown’s case for dangerous driving is founded. Yet the evidence on speed is that similar speeds in the 70-80 k/ph range are commonly expected at that place and time on Prior Street, and attracted traffic enforcement from time to time.

This evidence is clearly indicative of Motor Vehicle Act breaches but not sufficient, in my view, to sustain a finding of a marked departure from the standard of a reasonably prudent driver in all the circumstances. [ 59 ] Having regard to the caution in R. v. De Ciantis that the totality of the evidence must fix the moral blameworthiness of the driver at the criminal end of the spectrum of driving conduct, I am not satisfied that the Crown has met its burden to prove the offence of dangerous driving beyond a reasonable doubt. [ 60 ] Mr. Fonseca is found not guilty of count 1.

Evading a Peace Officer in Pursuit [ 61 ]

Section 249.1(1) 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. [ 62 ] The elements of the offence are set out succinctly in R. v. Kulchisky 2007 ABCA 110 at paragraph 4 :

a) The accused must be operating a motor vehicle.

b) The peace officer must be pursuing the accused.

c) The evidence must establish that the accused knows a peace 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.

g) The accused must fail to stop in order to evade the peace officer. Findings on Count 2 – Evading a Police Pursuit [ 63 ] There is no dispute that Mr. Fonseca was operating a motor vehicle. I am satisfied on the evidence that Cst. Lu, in particular, was in pursuit of Mr. Fonseca. He was in a marked police vehicle following the accused with the intent to overtake him: see R. v. Kagayalingam , 2006 ONCJ 402 , [2006] O.J. No. 4334 . [ 64 ] The issues to be decided are whether the Crown has proven beyond a reasonable doubt that Mr. Fonseca:

a) knew that a peace officer was in pursuit;

b) failed, without a reasonable excuse, to stop his vehicle as soon as reasonable in the circumstances; and

c) failed to stop in order to evade the peace officer. [ 65 ] Because Mr. Fonseca has testified, I must determine in accordance with R. v. W. D., supra, whether his evidence is capable of raising a reasonable doubt as to his guilt with respect to count 2. That is, if I believe his evidence, I must acquit. If I do not believe his evidence, but it raises a reasonable doubt as to his guilt, I must acquit.

Even if I am not left in doubt by his evidence, on the basis of the evidence I do accept, I must be convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 66 ] I have considered the evidence carefully and I have come to the conclusion that Mr. Fonseca’s evidence is not credible where he testifies that he did not see Cst. Lu’s vehicle at all, and moreover, did not see it with its lights and sirens on and in pursuit of him on Raymur Street or Glen Drive. [ 67 ] First, the context in which Mr. Fonseca came to be subject to a police pursuit is important in assessing his state of mind.

He admitted that after his close brush with Cst. Shaw, he knew he was in trouble with police. He was afraid of the consequences he would face. I can only conclude that, being so afraid, he would have been vigilant of police generally and of the potential for police interdiction. [ 68 ] His evidence of seeing Cst. McCaul’s van was that he did not think anything of it. However, if he was in a state of fear in relation to an earlier police incident, he would have thought something of it.

This statement is internally inconsistent with his professed state of mind. [ 69 ] His explanation for not seeing illuminated emergency lights on top of Cst. McCaul’s police van was that, if it was sunny, it could have affected his ability to see. Police emergency lights are exceptionally dazzling, and Mr. Fonseca was proceeding north and not likely to be directly facing the sun. [ 70 ] Notwithstanding this, I find that because the motorcycle passed the stationary police van facing in the opposite direction to Mr.

Fonseca’s route of travel, the evidence is not sufficient to establish a police pursuit at this juncture. The activation of the lights is relevant to Mr. Fonseca’s understanding of police reaction to seeing his motorcycle moments after leaving Cst. Shaw. [ 71 ] Several blocks further on, Mr. Fonseca denies seeing Cst. Lu’s marked police vehicle at all. This is in conflict with the officer’s evidence that not only did Mr. Fonseca turn to look in his direction but did so in particular when Cst. Lu turned on his vehicle’s lights and sirens.

The distance between the two vehicles at first sighting was about 30 feet. [ 72 ] I reject Mr. Fonseca’s evidence that he did not see Cst. Lu’s police vehicle at Raymur and did not see or hear it in pursuit. Although I accept as a general proposition, as did various police witnesses that a loud motorbike and padded helmet may muffle sound for the operator, Mr. Fonseca agreed he was able to hear car horns if they were sufficiently close. The sound of a police siren is significantly louder and uniquely distinctive from the short burst of a typical vehicle horn.

Sirens can be heard before the police vehicle is often seen. From an initial distance of 30 feet between them, it could not have escaped Mr. Fonseca’s attention that a police vehicle had put on its emergency signals or that it had started following behind and in pursuit. [ 73 ] I have considered the evidence that the emergency lights and sirens were deployed for very brief periods of time and only while Mr. Fonseca vehicle’s was in sight of Cst. Lu’s vehicle. I find that if the motorcycle was in sight, the volume of the police sirens would have been particularly loud and noteworthy. [ 74 ] It is notable that Mr.

Fonseca was seen accelerating away after Cst. Lu first activated the lights and sirens and later again when the officer closed the gap between the vehicle to about 60 feet and reengaged the lights and sirens. For a motorist who has had a recent police encounter, such as Mr. Fonseca, his continuing to speed away is entirely consistent with a person who is aware police are in pursuit and wishes to evade the police. I find that this was what Mr.

Fonseca was in fact doing. [ 75 ] One can not help but note that citizens and motorists have a common sense, instinctive and near-Pavlovian response to sirens particularly if they sound in close proximity – they look for the source of the noise, and if nearby, many motorists do slow down or pull over. By so stating, I wish to make clear that I am not applying an objective standard in this case. I recognize that the Crown must prove a specific subjective intent on the part of Mr. Fonseca. I am suggesting that Mr.

Fonseca’s evidence that he did not hear sirens and did not look out for their source defies common sense. [ 76 ] Mr. Fonseca explained that he did not bother to look back because it was too difficult for him. I find this evidence to be unbelievable and inconsistent with his testimony that he had looked back at Cst. Shaw on Prior Street, thereby learning that he was

dealing with a traffic enforcement officer. His evidence is also inconsistent with Cst. Lu’s evidence that he saw Mr. Fonseca look back at his vehicle on at least two occasions before accelerating away each time. [ 77 ] As to Cst. Lu’s evidence generally, I found him to be a refreshingly credible witness, quite prepared to admit the limitations of his observations, knowledge and experience. He testified fairly and even-handedly to what he knew and what he could recall. He was not shaken on his having the motorcycle in sight each time he activated the lights and sirens. He was not shaken on his observations of Mr.

Fonseca’s conduct and speed of travel. [ 78 ] Another inconsistency is Mr. Fonseca’s assertion that ultimately he decided to ride slowly back to Prior Street and look for Cst. Shaw. While Mr. Fonseca may not have seen Cst. Wong because he was in an unmarked Crown Victoria police vehicle at Jackson and Prior Streets, it is clear from this officer’s evidence that Mr. Fonseca was not driving slowly. By the time Cst. Wong activated his lights and sirens and started to follow, Mr. Fonseca had rapidly accelerated away. If he was on the lookout for police or Cst.

Shaw at that point, he could not have missed the police control of motorists at the intersection ahead. He appeared not to want to slow down until too late to avoid a minor collision. [ 79 ] In short, I reject Mr. Fonseca’s evidence that he did not notice anything untoward in police reactions or responses to him, and he did not hear any police sirens or see a police vehicle in pursuit. I do not accept that he was simply unaware of the intense police interest in him and unaware he was being pursued by Cst.

Lu in a marked police vehicle as he made his way south on Raymur and Glen Drive. [ 80 ] I am satisfied beyond a reasonable doubt, having regard to the totality of the evidence, that during the segment of the pursuit by Cst. Lu, Mr. Fonseca knew he was being pursued by a police vehicle with its lights and sirens engaged. He could not have missed the sirens behind him. I find that he had every reasonable opportunity to stop along Raymur or on Glen Drive, and he failed to do so in order to evade the police. [ 81 ] On the issue of Mr.

Fonseca’s state of mind, I accept that he was fearful of the consequences of his earlier driving but it does not raise a doubt with respect to his voluntary choice to keeping riding his motorcycle during the pursuit, and to not stop when he had a reasonable opportunity to do so. The facts of this case are quite different from R v. Foos 2010 BCSC 1771 in which the accused’s actions arose in the face of a serious peril, a firearm, which was outside of his ability to control. Mr. Fonseca’s evidence is that after his initial panic, he simply wanted time to think of his options.

His desire to have time to think things through is motive for the evasion and not in my view a reasonable excuse. As noted in R. v. Kulchisky 2007 ABCA 110 at para. 10 , on what constitutes intent to evade: “To evade, in our view, equates with an attempt to elude or get away from. The motive for evasion, assuming the absence of a reasonable excuse, is of no moment.” [ 82 ] For the forgoing reasons, on Count 2, I am satisfied beyond a reasonable doubt of the guilt of Mr. Fonseca with respect to the offence of evading a police pursuit. [ 83 ] In

summary, with respect to information number 5597-1, there shall be an acquittal with respect to the offence of dangerous driving under count 1 and a conviction under count 2 on the charge of evading a police pursuit. _______________________________ The Honourable Judge H.K. Dhillon Provincial Court of British Columbia