Her Majesty the Queen - v. -, 2014 SKPC 192

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 192 Date: October 31, 2014 Information: 44334495 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jordan Daniel Mongovius Appearing: J. Claxton-Viczko For the Crown D. Braun For the Accused JUDGMENT R.D. JACKSON , J Introduction [ 1 ] The accused is charged with dangerous driving arising from an incident February 24, 2014 in Saskatoon. [ 2 ] At issue is the identity of the driver as well as whether the manner of driving would constitute the offence of dangerous

driving under s. 249(1) (

a) of the Criminal Code [1] . [ 3 ] The Crown called the two onsite investigating police officers. The accused testified in his own defence and denied he was the driver identified by the police officers. As well, he called his friend Dalton Secord, who gave evidence admitting that he drove the vehicle, not the accused. Crown Evidence [ 4 ] Constable Kai Noesgaard of the Saskatoon City Police, Canine Unit, was dispatched around 9:15 p.m. to Mac’s Convenience Store at Ruth Street and Lorne Avenue concerning a robbery of a cab driver at that location.

Together with Constable Gawryluk, who was already on scene, a canine track was initiated northbound. [ 5 ] The pair emerged from a residential yard onto Ash Street, one block north, and observed a male walking toward a gray Trailblazer which was running in the middle of the street. A lone male occupied the vehicle in the driver’s seat. As the walker appeared to match the description given to him at Mac’s, Constable Noesgaard demanded he stop. At this point, the male took two or three running steps and entered the passenger side of the Trailblazer.

As he did so, the dome light came on illuminating the interior. [ 6 ] Constable Noesgaard described this individual as a male native wearing dark clothing with a shaved head. Constable Noesgaard estimated he was 10 to 15 feet from the vehicle and could clearly see both individuals when the light came on. He believed that Constable Gawryluk, who was shining his flashlight into the cab, was even closer. [ 7 ] The Trailblazer then reversed rapidly down the street going through the stop sign at the end of the block onto Lorne Avenue. The rear end of the vehicle pointed south and the front end north.

He observed a vehicle coming behind which had to swerve into the oncoming traffic lane to avoid a collision. The Trailblazer then accelerated heavily northbound on Lorne Avenue at speeds of 120 to 130 km/hr., according to Constable Noesgaard. The speed limit on Lorne Avenue he testified was 60 km/hr. [ 8 ] Constable Noesgaard described the driver as having a “mohawk” style haircut, shaved on the side and longer in the middle, Caucasian, with a neck tattoo.

Constable Gawryluk managed to get the license plate as the vehicle sped off down Lorne Avenue which they ran on CPIC producing a mug shot of the registered owner, Jordan Mongovius. Constable Noesgaard confirmed that “beyond a doubt” this was the driver he had just seen. [ 9 ] In cross-examination, Constable Noesgaard testified that both the passenger and the driver had tattoos on their neck. He reiterated that the passenger was definitely not Caucasian and was wearing dark clothing.

Constable Gawryluk confirmed that the gray Trailblazer was facing east sitting in the middle of the street, running with its headlights on. The driver was a male with a second male approximately two to three houses down walking across the sidewalk toward the vehicle. Constable Gawryluk shouted several times to this individual that he was a police officer (both Noesgaard and Gawryluk were in full working uniform - additionally, Constable Noesgaard had his canine on a leash).

The male then picked up his pace and entered the vehicle causing the interior light to come on. [ 10 ] Constable Gawryluk was able to shine his flashlight into both of the faces of the passenger and driver. He observed the driver to have short blonde hair with a visible neck tattoo. The vehicle rolled slightly forward and then reversed “faster and faster”.

At this point, Constable Gawryluk switched his flashlight to strobe in an effort to stop the vehicle, without success. [ 11 ] As they ran down the street after the Trailblazer, he observed the vehicle to back through the stop sign onto Lorne Avenue and then speed off northbound. He estimated the speed of the vehicle to be 120 km/hr, if not faster. He stated “I got to that location and got a good visual of the rear and got the license plate number.” He could see the flashing lights of a patrol car set up at Taylor Street and Lorne Avenue, north of their location.

He radioed Constable Burrows who confirmed back that he could see the vehicle approaching. It then made an eastbound turn and contact was lost.

[ 12 ] He then checked the mugshot which came up on the license plate query and positively identified the owner, Jordan Mongovius, as the driver he had just observed. “I immediately recognized this individual and had dealt with him previously and most recently in November, 2013. I positively identified this male to be the same individual and noted that his tattoos stood out - on the side of his neck.

He had short blond hair just as I had seen, and it was no doubt in my mind this is the same individual that was driving the vehicle today” [2] . [ 13 ] He described the passenger as “possibly Aboriginal - 5'10", 180 - 190 - I didn’t get as good a look at his face as I did the driver” [3] . Defence Evidence [ 14 ] The accused took the stand in his own defence.

He was observed by the Court to be Caucasian, approximately 6'0" tall with a shaved head and a prominent tattoo on the right side of his neck, which he admitted subsequently in evidence, he had on the night of the incident. [ 15 ] The accused testified that he purchased the gray Chevy Trailblazer on the day of the incident for $2,800.00.

Because he was a suspended driver he took his friend, Dalton Secord, along to do the driving. [ 16 ] Later that afternoon he had Dalton drop him off at his mother’s for supper while Dalton ran personal errands. [ 17 ] Later when Dalton hadn’t returned the accused went on Facebook and offered a friend, Tyler, twenty dollars to drive him home.

He didn’t want this “friend” however to know where he lived because he was cautious about giving out such information, he testified. [ 18 ] The plan, the accused stated, was to be driven to the Mac’s store on Ruth and Lorne and from there he would walk the few blocks to his apartment. As they neared the Mac’s store they observed police cars with lights flashing. Curiously, the accused then told Tyler to go over one block because of the presence of the patrol units, which he says Tyler did, going then down Ash Street.

About halfway down the block Tyler pulled his red Ford SUV over to the curb and waited for the accused’s friend Dalton to appear. According to the accused, Dalton had recently texted advising he could come now and was directed where to go. About five minutes passed before Dalton drove up in the Trailblazer. [ 19 ] As the accused alighted Tyler’s red SUV directly adjacent to the Trailblazer, he testified: . . .

I proceeded to walk to that Trailblazer, and as I was coming around the - the Ford behind it, I - as I was coming around, I had seen in front of me that there was two - I’m not sure - males, females, I’m not sure - coming towards me, and they - actually they had the dog too. I seen the dog. And I ran, I kind of went a little quicker into the ride, and as soon as I get into the - the Trailblazer, I - I told - I had told Dalton because of the two people, how they were moving towards us and whatnot, I assumed something wrong. I never seen no flashing - or headlights. They never said cops.

I never heard nothing like that, so I assumed that it was something bad and something could have happened out of that prior to - issues I’ve had before. So I jumped into the vehicle, and immediately he slammed it into reverse, and I told him, go, go, go. [4] Q. Alright. So is it fair to say that Dalton - that you had some conversation with Dalton prior to leaving Ash Street? Was anything said when you got into the vehicle? A. I was in a rush. I told - like, I was - I was telling him to go, go as soon as I hopped in the vehicle. I was telling him go. There’s people coming. Like, I just - I was panicking.

Q. Mmhmm. A. I was - I was in a panic, so yes, I - I said a few things to him. Q. Okay and he just followed your instructions? A. Yah. He just acted quickly I suppose. [5] [ 20 ] No further mention was made of his friend Tyler who he said chauffered him to the spot and whose vehicle was directly beside the Trailblazer, being left apparently to fend for himself.

Neither were the police officers cross-examined regarding the presence of this red Ford SUV. [ 21 ] According to the accused, Dalton reversed down the block, made a “U-ball” just before the intersection, stopped at the stop sign and then turned left going south down Lorne Avenue. As to any vehicles he stated “there were no vehicles around us - no vehicles that I seen that were driving”. [6] Later in cross-examination he stated on this latter point . . .: Q. Okay. But you agreed with me that at some point you realize that this is a police because - A.

I - Q. - they get close enough to you that you can see their uniforms? A. - I did not realize it was the police at all. I would have stopped immediately. I was doing nothing wrong. I had nothing to worry about it. I would have stopped immediately if it was the police. Q. Okay. So when the officer is standing 20 feet in front of you and the headlights of the vehicle are on and he is in uniform, you can’t tell that it’s a police officer? A. I’m not paying attention to him. We’re going reverse. There’s traffic behind us. I’m worrying about hitting cars and whatnot. Q. I thought you said there was no traffic. A.

You’re driving. There’s - there could be traffic coming. There’s - Q. I see. [7] [ 22 ] The accused stated that Dalton then accelerated to perhaps 60 to 80 km/hr down Lorne Avenue going south. [ 23 ] Mr. Secord, a Caucasian male, 20 years of age, with slim build and no neck or facial tattoos, next took the stand.

[ 24 ] Mr. Secord admitted to being a long standing friend of the accused and that he, Mr. Secord, was the driver of the accused’s Trailblazer that evening, not the accused who was in the passenger seat. Mr. Secord further testified that he wore a completely red outfit that night consisting of a red bunnyhug and sweat pants. [ 25 ] He corroborated that he dropped the accused off at his mother’s for supper and that later he and the accused were communicating by cell phone which is how he knew where to go.

When asked in chief whether this was text or telephone, he answered definitively that it was by telephone call. Further, he was advised that the accused would be standing on the street which is what he saw when he drove up. The accused, by contrast, stated that Mr. Secord had texted him and that he waited in Tyler’s vehicle until the Trailblazer drove up. [ 26 ] As to why he took off he said he just did what the accused told him to do. When asked what he did see as he faced the direction of the two individuals and the dog, said: Q. Okay. Did you ever see or hear any people or a dog? A. No.

I just heard, like, commotion, like, just like yelling. I didn’t - couldn’t really understand, picking up what anybody was saying, couldn’t see nothing. It was really dark out. Q. Okay. So you heard a voice? A. I just heard, like, a yelling. Like, I - I could not catch what the - what the person had said. Q. Well what the words were - did you hear a dog? A. Like, a glimpse of a dog, like, a bark. It was very, like, silent. It wasn’t very loud or nothing. Q. Mmhmm. Where - do you know where these people were in relation to your vehicle? Front? Back? Side? A. They would have been in the front. Q.

They would have been? A. It would have been - Q. Did you see them? A. I did not see them, but when I turned around, I did not see no people when I turned around in front of the vehicle where - when I had turned around. [8] Q. Okay. When you picked Jordan up and he got in, you described that he had said - he said something to you that something was going on, and we should get out of here.

A. He just said there’s something gone over - going on over there. There’s people yelling. Let’s just go. Let’s go and just, like, not to get involved. Like, it could be, like, highschool party or something - it was late at night - or just people - not going to get involved with anyone, so we just proceeded to leaving (sic) . Q. Okay. But you didn’t actually see anyone yourself? A. I did not see noone myself, no. [9] [ 27 ] He reversed and then turned around, stopped at the stop sign, signalled and turned left down Lorne Avenue heading south at a speed he estimated between 40 and 50 km/hr.

The next day he attended at the police station with the accused in connection with the Trailblazer which apparently had gone missing overnight. He advised the officer at the police station that he drove the vehicle, not the accused. When asked if he would give a warned statement to this effect, he declined because he did not have a lawyer present. He admitted that he never did consult a lawyer or return to give a warned statement. . .: A. Exactly I know - and I just never wrote a statement. I’m not going to. Being honest, I’m not going to write a statement. Q. Okay. So you’re prepared to be here today - A. Yah.

Q. When - when Jordan’s on trial for dangerous driving - A. Yah. Q. But not quite so prepared to give a statement that might implicate you? A. While I was the driver. Like, I was operating the vehicle. I didn’t sign a statement at the time, didn’t write no statement out. I didn’t know how serious it was. There was no lawyer involved. I don’t know how to make it more clear. Decision [ 28 ] The accused testified in his own defence so the Court must consider the principles enunciated in R v W(D) [10] .

The Court had opportunity to consider this doctrine in R v Washkowsky [11] at paras. 17 and 18 : [17] Having rejected the evidence of the accused regarding his version as to how the injuries to himself and the complainant were inflicted, the Court must now determine upon a review of all of the evidence presented, whether there remains reasonable doubt as to the accused’s guilt. It was stated thus by Mr. Justice Cory in R. v.

W.(D.) , supra , at para. 28 : 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. [18] The

interpretation and proper implementation of this formula in practice by a trial judge was described by Code, J. in the recent decision of R. v. Edwards[12], commencing at para. 18: 18 Because Cory, J. was setting out a model jury charge, where the judge does not know what conclusions the trier of fact will reach onthe issue of credibility, the instruction leaves open three quite different findings that a trier might make in relation to credibility. Theroot cases, on which W.D. is based, are R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), R. v.Nimchuk (1977), (ON CA), 33 C.C.C. (2d) 209 (Ont.

C.A.), and R. v. Morin (1988), (SCC), 44 C.C.C.(3d) 193 (S.C.C.). In Challice, supra, at 556-7, Morden J.A. (as he then was) gave the judgment of the Court and referred to the threefindings that a trier can arrive at in a case where there is a credibility dispute on a “vital issue”. He described the three options as “totalacceptance, total rejection, or something in between”. The middle ground, or “something in between”, was described as “being unable toresolve the conflicting evidence and, accordingly, being left in a state of reasonable doubt”.

Morden J.A. was relying, in this regard, onMartin J.A.’s earlier judgment on behalf of the Court in Nimchuk, supra at 210, where he stated that complete acceptance of thecomplainant’s evidence or complete acceptance of the accused’s evidence were not only options when a trier of fact is faced withconflicting accounts.

Martin J.A. held that there was another “choice” and he put it this way: There was, of course, a third alternative, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truthof the matter lay, it would, of course, require an acquittal. [Emphasis added] 19 Challice, and its reliance on Nimchuk, was authoritatively adopted by the Supreme Court of Canada in Morin, supra, at 208-8 and211, where Sopinka, J. held that the above passages “correctly state the law” and should be used in jury instructions.

In W.D., supra atpara. 27, decided only two years after Morin, Cory J. made it clear that his judgment was not breaking new ground but was simplyfollowing settled law as articulated in Challice and Morin. Indeed, in W.D.S., a case decided shortly after W.D., Cory J. used MartinJ.A.’s language in Nimchuk and referred to the middle ground as a “third alternative”. In other words, the second stage or step in W.D.refers to a finding of fact that is quite different from the positive states of belief or disbelief referred to in the first and third branches ofthe W.D. framework.

They are three separate alternative or choices for the trier of fact that will depend on the strength of the evidence. In R. v. S.(W.D.) (1994), (SCC), 93 C.C.C. (3d) 1 at 10 (S.C.C.), Cory, J. again gave the majority judgment and put itthis way: Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essenceof these instructions be given. It is erroneous to direct a jury that they must accept the Crown’s evidence or that of the defence.

To putforward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version inpreference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to thejury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not beacquitted unless the defence evidence was believed. It seems to me that the recharge in this case suffers from the same flaw as the recharge in R. v. W.(D.), supra.

It will be remembered thatin that case the trial judge instructed the jury on the recharge that the issue that they had to decide was whether they believed theaccused or the complainant.

Directions such as that exclude what has sometimes been referred to as the “third alternative”; namely, thatwithout believing the accused, the jury, upon considering the evidence of accused in the context of all of the evidence, may have areasonable doubt as to his guilt. [Emphasis added]. 20 Accordingly, the so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejectedand use it as a basis for finding reasonable doubt. This is not rational.

The middle ground in W.D. is an “alternative” to complete beliefor complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of thematter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where thetrier is not “able to select one version in preference to the other”, as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completelyrejected Edwards’ account and completely accepted T.B.’s account.

In other words, he was able to resolve the conflict in the evidenceand he was not left in a state of uncertainty. By stating definitively, “I disbelieve the defendant”, the trial judge could not have been left

in reasonable doubt by that testimony. [13] [ 29 ] The accused’s demeanour on the stand was nervous and lacked confidence or conviction. His recounting of the events was at times confusing, contradictory, and highly implausible. Why, as a passenger in Tyler’s vehicle, he would guide him away from the Mac’s to a side street because of the presence of police officers makes no sense whatsoever. As he stated, he had done nothing wrong so why would he need to avoid the police?

Unless, of course, he was operating the vehicle as a suspended driver. [ 30 ] Further, his claim that he could see the two individuals approaching with the dog yet could neither see that they were dressed in full police uniform nor hear the several calls of “stop” “police”, beggars belief. As well, no mention was made in any notes or report about a red Ford SUV sitting directly beside the Trailblazer nor were the two officer cross-examined on this point. Surely, had this individual Tyler been sitting right there in a prominent red SUV he would have been questioned as a witness or at least mentioned by police.

The logical inference is that there was no such vehicle or individual present. [ 31 ] Mr. Secord’s evidence was even more incredulous; it defies logic that he could be sitting in the driver’s seat, facing in the direction of two individuals and a dog who were ten to twenty feet away and not see them. [ 32 ] The Crown evidence by contrast was lucid, straightforward and highly credible. Both officers testified to being within ten to twenty feet of the vehicle and both being able to see clearly into the driving compartment as the dome light went on.

Additionally, Constable Gawryluk shone his flashlight directly into the face of the driver who was described as having a shaved head and visible neck tattoo, a description which does not match Mr. Secord, but rather the accused. [ 33 ] Next Constable Gawryluk further testified that he recently had dealt with this individual. Further, both he and Constable Noesgaard were positive that the driver was the accused after checking his mugshot when the license plate was run on computer.

Both officers also described the passenger as wearing dark clothing and appearing to be Native - definitely not Caucasian. [ 34 ] As well, both police officers gave detailed accounts of how the Trailblazer reversed through the intersection and then turned right heading north, not south, as testified to by the accused and Mr. Secord. Constable Gawryluk in fact was close enough to secure the license plate number and observe the vehicle to be heading toward a patrol car that was set up a few blocks north. He also received radio communication that the Trailblazer could be seen heading in that direction.

Given their detailed descriptions and close proximity to the vehicle, it is hardly credible that both would be in error as to something as basic as what direction the vehicle proceeded. Nor could the manner of driving testified to by both officers be in more stark contrast than the evidence of Mr. Secord, i.e. rather than achieving speeds of 120 - 130 kph, he was driving well within the speed limit of 40 - 50 kph. The simple answer is that the vehicle was not travelling at this rather pedestrian speed nor was Mr.

Secord the driver. [ 35 ] In short, where the Crown evidence conflicts with the Defence evidence, the Court prefers and accepts the evidence of the Crown and rejects the evidence of the accused and the witness Secord. [ 36 ] Having rejected the accused’s evidence and having made no findings otherwise on the whole of the evidence to raise a reasonable doubt, nor having any uncertainty as to how to resolve the evidentiary discrepancies, the Court finds that the accused was the operator of the motor vehicle in question on February 24, 2014. [ 37 ] Regarding the manner of driving, the Court has no hesitation in finding that, viewed objectively, it meets the constituent elements of dangerous driving as laid down in R v Hundal [14] , being a marked departure from the norm.

The facts in support of this finding are: backing through a stop sign at a high rate of speed onto a well travelled city avenue, a near collision with another vehicle and speeds estimated between 120 and 130 km/hr., over twice the lawful posted speed limit. Apart from the vehicle that had to swerve to avoid a collision, it is reasonable to conclude that pedestrians, cyclists and other vehicular traffic would be expected in this residential area at this time. [ 38 ] In all of the circumstances, the accused is found guilty of the charge of dangerous driving, as per the Information.

___________________________ R.D. Jackson, J [1] S. 249(1)(

a) 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 anduse 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 expectedto be at that place; [2] Transcript page 39, lines 15 - 23. [3] Transcript page 41, lines 16 - 20. [4] Page 57, lines 4 - 20 [5] Page 62, lines 22 - 26; Page 63, lines 1 - 8 [6] Page 73 [7] Page 78, Lines 7 - 26 [8] Page 94, lines 7 - 26 [9] Page 107, lines 14 - 26 [10] (SCC), [1991] SCJ No 26 (SCC) [11] 2014 SKPC 43 , 2014 SKPC 043 at paras 17 - 18 [12] [2012] O.J.

No. 2596, 2012 ONSC 3373 (Ont. S.C.) [13] See also R. v. B.D., 2011 ONCA 51 (Ont. C.A.) [14] (SCC), [1993] 1 SCR 867, 79 CCC (3d) 225 (SCC)