R. v. Adriaenssens, 2019 MBPC 10

Citation: R. v. Adriaenssens, 2019 MBPC 10 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Yan for the Crown ) - and – ) ) Chevy Adriaenssens ) A. Claros for the Accused ) ) Judgment delivered: February 5, 2019 ) TRIAL DECISION L. M. Martin, P.J. Introduction [1] Chevy Adriaenssens stands charged with impaired driving (Criminal Code s. 253(1)(a)) and public mischief (Criminal Codes. 140). The charges arise from an incident on November 12, 2017 when Adriaenssens’s motor vehicle was involved in a suspectedimpaired driving collision and the driver fled before police arrived on scene.

Adriaenssens denies being the driver of his vehicle,reporting it stolen instead. [2] The matter proceeded to trial on December 14, 2018. The Crown called several witnesses including Kristen Single, aneyewitness to the motor vehicle collision, Winnipeg Police Service (WPS) Constable Kirton, the investigating officer, and ConstableJanz, the officer who conducted the photo line-up. Adriaenssens also testified and called alibi evidence through his girlfriend, CassidyThomas.

Counsel made several agreements, including the 911 calls from both Single and Adriaenssens. [3] The issue for the Court is the assessment of the evidence in accordance with the principles enunciated in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 to determine the following: • whether I believe Adriaenssens’s evidence that he was not driving his vehicle on November 12, 2017 when it was involved in thecollision, in which case he is to be acquitted of all charges; if not, • whether I am left in reasonable doubt by Adriaenssens’s evidence, in which case he is also to be acquitted; or, • if I do not believe Adriaenssens’s evidence and it does not raise a reasonable doubt, whether the Crown has proven beyond areasonable doubt that: o Adriaenssens was the driver, proving the public mischief charge; o Adriaenssens’s ability to operate a motor vehicle was impaired by alcohol. [4] In assessing whether the Crown has proven identity, Defence counsel argues that the photo line-up was conducted improperlyand as a result, that the Court should place little to no weight on Single’s identification of Adriaenssens. [5] Because the Court is required to consider all of the evidence in making credibility assessments, I turn to an overview of theevidence at trial. (See: R. v.

Menow, 2013 MBCA 72)[1] The Evidence for the Crown [6] On November 12, 2017, shortly after 2:00 a.m., Kristen Single, a 31-year-old nurse’s aide, was driving home west on PortageAvenue after an evening of karaoke. The road conditions were clear with no ice or snow. As it was the middle of the night, it was darkbut streetlights illuminated the street. While driving westbound on Portage Avenue, a vehicle (not the accused’

s) travelling in theadjacent nearly struck her several times. As Single suspected the driver of this vehicle was impaired, she called 911. [7] Single testified that while she was still on the phone to 911, a second vehicle travelling eastbound on Portage Avenuebetween 60 and 70 kmph, lost control for no apparent reason, mounted the median, hit a planter, moving it 15 to 20 feet, and then hit asign. The vehicle landed in front of her and Single swerved to avoid hitting it.

She parked her car and went to see if the driver was hurt. [8] The vehicle involved in the collision suffered extensive damage, particularly to the windshield and front-end. As the airbagshad deployed, Single told the 911 operator to call for an ambulance. A male was still in the driver’s seat and the keys were in theignition. She leaned into the vehicle to speak to the driver and detected a very strong odour of alcohol coming from his breath. Shetestified that he “reeked”; it was as if someone had poured alcohol on him.

[ 9 ] The driver got out of the vehicle, walked to the curb, then sat down. Single described his gait as unsteady and wobbly, meaning that he was stumbling with a bit of a drag. He also had a limp. She was not sure if the limp was a result of the collision but in her opinion, the stumbling was because of intoxication. [ 10 ] The driver was also slurring his words. She asked the driver his name and address. He replied “Mitchell Keiam, 50 Stradford Street”. She then held up her fingers three separate times to see if he could see the correct number in assessing whether he might have a concussion.

The first two times he was wrong, seeing one more finger than she held up. The third attempt, he was correct. [ 11 ] The driver then got up from the curb, walked back to the car and took the keys out of the ignition, putting them into his right coat pocket.

He then removed what appeared to be a handgun from the side of the driver’s door, tucked it into the back of his pants and ran off. [ 12 ] Single described the driver as Caucasian, 18 to 20 years old, 6 feet 2 inches to 6 feet 3 inches tall with long brown shaggy hair and bangs, brown eyes, wearing a red sweater and black jacket, dark pants and black runners. [ 13 ] On cross-examination, Single was challenged on some of her direct evidence, particularly as regards its inconsistency with her 911 call, which was played in its entirety. The 911 call is interesting in several regards.

First, it is clear that Single was focused on the first suspected impaired driver, providing details as to the make and model of the vehicle, the colour, the plates and its whereabouts. Her last comment about this vehicle was that it was a block away when she commented that a second vehicle had just been involved in a “major accident”. Next, it is also clear that Single initially thought that this collision was due to the first suspected impaired driver.

In response to the 911 operator’s question if Single thought the collision had anything to do with the first suspected impaired driver, Single replied “it very well could have been, yup”, adding that the vehicle had “kind of turned then swerved”. Further, not all of Single’s observations she testified to in Court were conveyed to the 911 operator. She did not tell the 911 operator about narrowly missing Adriaenssens’s car or the presence of a gun.

Nor did she detail any signs of impairment although in this latter regard she did tell the 911 operator “I think he’s drunk too”, then adding in a more insistent tone, “he reeks of alcohol, like he reeks”. Despite this lack of detail to the 911 operator, Single maintained her opinion in cross-examination that Adriaenssens’s presentation was due to alcohol consumption and not the motor vehicle collision or the deployment of the air bag. [ 14 ] When Constable Kirton arrived on the scene of the motor vehicle collision, the driver of Adriaenssens’s vehicle had already left.

Kirton testified that the vehicle had sustained extensive damage to the front passenger side and windshield. Tire tracks suggested that the vehicle was travelling eastbound on Portage Avenue, drove over the curb onto the median and struck a large concrete planter moving it a bit, though he could not say how far. He had no recollection of the road conditions, simply that there was snow on the median. [ 15 ] An interior inspection of the vehicle revealed no noticeable damage indicative of the car having been stolen, including no damage to the steering column. No car keys or liquor was found in the vehicle.

There were no licence plates but there was a temporary registration certificate affixed to the windshield, which noted Adriaenssens’s name and address. After interviewing Single and getting a description of the driver, Kirton went to the address on the registration. It was the home of Adriaenssens’s parents. Adriaenssens was not at home. His parents tried contacting him by phone and text to no avail.

They suggested he might be staying with his girlfriend at an address near Hamilton Street. [ 16 ] Kirton next tried to locate Adriaenssens at the address the driver provided Single, being 50 Stradford, but determined no such address existed. Kirton’s next step in the investigation was to obtain a statement from Single and have her view a photo pack. Unfortunately, shortly after the November 12, 2017 incident, Single was diagnosed with cancer and undergoing chemotherapy, too ill to attend WPS headquarters.

As a result, Kirton attended her home on November 29, 2017 to conduct the interview and photo line-up. [ 17 ] Kirton testified that prior to attending Single’s residence, he put together a photo pack using Adriaenssens’s photograph from his Manitoba Public Insurance Corporation (MPI) driver’s license as not only was Adriaenssens the registered owner of the vehicle involved in the collision, he matched the description of the driver provided by Single on November 17.

As Adriaenssens’s hair in the MPI photograph was short black instead of long brown and shaggy as described by Single, he used black hair instead of brown as a parameter for the computer system that prepared the photo pack. That photo pack, which contained ten individuals, was printed in black and white instead of colour as the MPI photograph had a noticeable different background from the other nine photographs taken from the WPS system. As a result, all of the photographs of potential suspects were in black and white.

This photo pack was shown to Single by Constable Janz, an officer who had no knowledge about the investigation, the accused or the photo pack. [ 18 ] Four officers went to Single’s home on November 29: Constable Kirton and his partner, as well as Constable Janz and his partner. Single could not remember the officers’ names but testified that a member of the WPS told her she would be shown a series of ten photographs, one at a time, face down. She picked up the photograph, examined it, then placed it on the table and slid it back to the officer who then provided another photograph.

The same procedure was followed until all ten photographs were examined. At no time did that officer or anyone else ever tell her that the suspect’s photograph was contained within the pack of ten photographs. [ 19 ] Single examined all ten photographs, then asked to view them again to ensure she was “one hundred percent sure”.

She chose Adriaenssens’s photograph, commenting, “The picture is a little dated, but his hair was longer, but it’s bang on.” There was no discussion with or comment by the officers about her choice. [ 20 ] Kirton and Janz provided similar evidence with respect to the photo line-up procedure. They also testified that the photo line-up was not videotaped as the general patrol unit they were working in did not, to their knowledge, have access to such equipment, and neither considered audio recording. [ 21 ] After the photo line-up was completed, Janz and his partner left.

At no time did anyone tell Single she had identified Adriaenssens. [ 22 ] It was not until January 11, 2018, that Kirton found and arrested Adriaenssens at 47 Stradford, his girlfriend, Cassidy Thomas, parents’ home. After being provided with his Charter rights and caution, Adriaenssens admitted to drinking on the night in question but

denied driving. He also commented that he never made a claim with MPI as his vehicle was not insured. Cassidy Thomas and her stepfather, Kendall Rake, were present. Neither said anything when Adriaenssens was arrested. It was not until the Crown later contacted Kirton that he was informed Thomas, Rake and Thomas’s mother, Crystal Frame, could provide alibi evidence. Only Thomas provided a statement one week prior to the trial.

The Evidence for the Accused [ 23 ] Adriaenssens denies that he was the driver of his vehicle on November 12, 2017, when it collided with a planter on Portage Avenue. [ 24 ] Adriaenssens testified that on November 11, 2017, he was at Thomas’s house with her stepfather and mom. He drove there and parked in the driveway. He left the doors unlocked, as was his custom, and placed the sole set of car keys to the vehicle in his sweater pocket. [ 25 ] Over the course of the evening, he consumed some beer and coolers.

He testified that he likely would have consumed approximately six alcoholic beverages over the course of three hours. He further testified that this was “a lot” for him and that he did not usually drink. He added, however, that it was not enough alcohol to make him “go crazy”. [ 26 ] At some point in time during the evening, he and Thomas left the house to smoke a cigarette in his vehicle. He did not check on the whereabouts of his car keys as the vehicle was not locked. [ 27 ] Then, between 11:30 p.m. and midnight, he and Thomas went to bed on the futon located in the living room.

He woke up in the morning to being asked if he could drive Thomas’s parents to Smitty’s. It was then that they realized his car was not in the driveway and the car keys that were in his sweater pocket which he had left on the floor of the living room, were gone. He also noticed that his mother had left several messages for him on his phone. [ 28 ] Adriaenssens then called 911 to report his vehicle missing. When asked by the 911 operator what his address is, he responded “50 Stradford”, the same non-existent address the driver of Adriaenssens’s vehicle provided to Single.

Adriaenssens testified that he inadvertently provided this address to the 911 operator as he mixed it up with the address of his new employer located at 50 Dundurn. [ 29 ] Thomas testified to an evening similar to that described by Adriaenssens. She says that the two played cards, watched a video and had some drinks. At some point they also smoked a cigarette in Adriaenssens’s car. They then went to sleep before midnight. Between 7:00 and 8:00 a.m. she awoke to hear her mother talking about calling a taxi to go to Smitty’s.

Thomas told her mother that Adriaenssens would drive but her stepfather noticed his car was not there. Thomas ran outside to confirm the vehicle was no longer there then ran back in to advise Adriaenssens. That is when she checked her phone and noticed his mother had tried to get in touch with her during the night. Thomas testified that Adriaenssens looked both angry and surprised at the news his vehicle was missing. [ 30 ] She also testified that she was unware that she could provide alibi evidence to the police.

In addition, Adriaenssens was under a court order not to have any communication with her and it was not until an officer attended her house asking if she wanted to help out that she went to the police station, testifying that she knew for a fact he “didn’t do it”. [ 31 ] On cross-examination, Thomas conceded that by the time she provided her statement to the police her memory was a bit hazy. She could not for example recall when the incident happened or whether she had slept in her brother’s room that night or the living room.

She conceded that but for Adriaenssens vehicle going missing, there was nothing that particularly stood out the prior evening. And yet, Thomas testified to relatively exact estimates of the amount of liquor consumed, the people present, and the time she went to bed. She was also adamant that if Adriaenssens had gotten out of bed she would have woken up. She acknowledged that she did not tell the police the night he was arrested that he was innocent because he was with her the entire time. She simply asked why he was being arrested.

W.(D.) Analysis [ 32 ] As noted previously, given that the accused testified, this Court must assess the trial evidence in accordance with the principles enunciated in R. v. W.(D.) . As Adriaenssens has provided alibi evidence, that evidence must also be similarly assessed. As will be detailed, the Court has several reliability and credibility concerns. [ 33 ] Beginning with the accused, I have concerns about his credibility. While there is no clear example of discrepancies in Adriaenssens’s evidence, his story of how his keys went missing defies credulity.

The evidence is clear that the driver of his vehicle had car keys. Single testified to seeing them in the ignition and Kirton testified to the lack of any damage to the ignition or of any indication the vehicle had been hot-wired. There is also no evidence as to any break and enter into Thomas’s residence or anyone in that residence taking the sole set of car keys from his pocket while he slept. [ 34 ] There is also the evidence of Adriaenssens providing an inexistent house number to the 911 operator, 50 Stradford, the same inexistent house number the driver of Adriaenssens’s vehicle provided to Single.

Though Adriaenssens provided an explanation for his error, I have great difficulty accepting his testimony. [ 35 ] I also have some concerns with the reliability and weight of his alibi evidence, which was provided just one week prior to the trial. While Thomas’s explanations as to why she did not contact the police earlier are not illogical, they do not explain why she took so long to provide a statement after having been contacted by the police. [ 36 ] The bigger issue however is the reliability of Thomas’s evidence.

Thomas acknowledged that November 11, 2017 was a night like any other, unremarkable because of its banality. She acknowledged that given the passage of time, her recollection of that night was hazy, commenting to the police that she could only remember ‘a bit’. Despite this, she provided specific evidence as to the amount of alcohol consumption, the individuals present and the time she and the accused went to bed. She even provided evidence very similar to Adriaenssens that the two left the residence at some point in the evening to smoke a cigarette in his car.

The specificity of this evidence is at odds with her hazy recollection of an unremarkable evening.

[37] In addition, her position that it would be impossible for Adriaenssens to leave the house without her knowledge is problematic.On the one hand, she conceded that after drinking alcohol, as she did that night, she would sleep deeply.

Yet when it was suggested thatAdriaenssens could have gotten out of bed without her realizing, she denied that was possible, testifying she is a light sleeper. [38] As a result, I find that I do not believe Adriaenssens’s evidence, nor does it raise a reasonable doubt. [39] As for the Crown’s evidence, it was clear that Single was not only very certain of her testimony, at times, she was defensive.Instead of, for example, conceding that she did not convey to the 911 operator information she testified to in Court, she asked the Defencelawyer what he would have done in that situation, or explained that she is a trained health care aide and does not always express fears shemay have.

There are also some reliability issues with Single’s evidence as regards the speed Adriaenssens’s vehicle was travelling beforeit was involved in a collision given the 911 call suggests her focus would have been on the first suspected impaired driver. That said,Single’s evidence was generally consistent, not only with respect to the events of November 12, 2017, but also her opinion that the driverof Adriaenssens’s vehicle was drunk. [40] In the end, notwithstanding the noted concerns, I accept Single’s evidence.

Identification Evidence [41] Defence counsel has raised concerns about the photo line-up process, as regards both the choice of parameters Kirton inputtedfor the preparation of the photo line-up and the lack of video or audio recording of Single’s photo pack identification and asks the Courtto place little weight on the identification made by Single. [42] The Honourable Commissioner Cory made several recommendations about photo pack line-ups in the Sophonow Inquiry.[2] Case law is consistent that the Sophonow Inquiry recommendations are simply that, recommendations.

Any failure to follow thoserecommendations does not automatically result in an exclusion of the evidence on the basis of that non-compliance. (See: R. v. Doyle,2007 BCCA 587, paras.10-15) There are cases where photo pack line-ups have been excluded but an exclusion of such evidence is a casespecific assessment of whether identification procedures have been fairly conducted by investigators (Doyle, para. 13; see also R. v.Lamontagne, 2018 ONCJ 446). [43] In this case, the photo pack line-up was fair.

Kirton testified as to how he had the photos printed in black and white instead ofcolour to ensure there was no remarkable difference in quality between them. The lack of a video or audiotape is more concerning as itdeprives the Court of the opportunity to assess the photo line-up procedure. It is trite that eyewitness identification is fraught withdifficulties. The Sophonow recommendations are aimed at ensuring that the identification process is not tainted.

While there is noevidence or suggestion of any bad faith on the part of any of the officers, tainting can occur unwillingly or unknowingly. [44] In this case, the evidence is that the Sophonow recommendations were followed with the exception of the recording. It iscommendable that the officers accommodated Single. However, it is surprising that the officers did not consider or were not able toaccess recording equipment. [45] That said, the lack of recording does not, in this case, affect the weight of the photo line-up identification given the consistentevidence of the procedure followed.

Findings and Conclusion [46] When I consider and weigh the evidence, I find that I do not believe Adriaenssens’s evidence that he was not the driver of hisvehicle on November 12, 2017. I also find that his evidence does not raise a reasonable doubt. I do find that the Crown has provenbeyond a reasonable doubt that Adriaenssens made a false statement to the 911 operator when he claimed his vehicle was stolen. As aresult, I find him guilty of public mischief. [47] As for the impaired operation, s. 253(1)(

a) of the Criminal Code requires proof that the ability of the accused person to operatea motor vehicle was impaired by alcohol or drug. [48] As noted in R. v. Stellato, (ON CA), [1993] O.J. No. 18 (ONCA): 14 In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [49] The Crown’s evidence as to impairment comes from Single. I have noted some reliability concerns related to her observationsof Adriaenssens’s manner of driving prior to the collision. However, her evidence as to Adriaenssens’s signs of impairment wasconsistent.

It is true that Single did not relay the signs of impairment to the 911 operator, but, in listening to that 911 call, it is clear thatSingle was, for the most part, relaying matters of significance or responding to questions from the operator, rather than talkingconstantly. For example, Single tells the 911 operator that she may want to send an ambulance as the airbag deployed without providinginformation about Adriaenssens’s presentation.

Likewise, she does not tell the 911 operator that Adriaenssens is not responding correctlyto the number of fingers she is holding up even though it is clear from the 911 call that she was in fact performing that test on him. Giventhe circumstances, it is not surprising that she would be focused on providing the information required rather than every single detail ofher observations.

As a result, I do not have any credibility or reliability concerns regarding her observations. [50] I have considered her opinion of impairment given that some of the signs displayed by Adriaenssens could also be consistentwith having just been in a significant motor vehicle collision, such as difficulty seeing the correct number of fingers or stumbling.However, there were also other signs of impairment, such as slurred speech and a very strong odour of liquor.

[ 51 ] There is also no indication that Single had any bias in coming to her opinion. Single’s initial thought was that the first suspected impaired driver was to blame for Adriaenssens’s collision. She was concerned for his well-being.

It was not until she interacted with Adriaenssens that she became concerned that he too might be intoxicated, and later, obviously convinced by the reeking odour of liquor, that he was indeed intoxicated. [ 52 ] There is also Adriaenssens’s post-offence conduct, being his flight from the scene and his lie to 911. [3] Though Adriaenssens’s flight might also be explained by the possible presence of a gun, as Single testified to, Adriaenssens has denied owning or having possession of a gun. [ 53 ] There is as well Adriaenssens’s evidence that he had been consuming alcohol that night and that he had consumed “a lot”. [ 54 ] Whether a driver’s ability to operate a motor vehicle is impaired by alcohol is a question of fact that is to be determined based on the totality of the evidence. [4] Based on the evidence before the Court, I find that the Crown has proven beyond a reasonable doubt the offence of impaired operation.

As a result, I find Adriaenssens guilty of that offence. “Original signed by:” MARTIN, P.J. [2] The Inquiry Regarding Thomas Sophonow, Manitoba 2001: Recommendations on Photo pack line-ups: ● The photo pack should contain at least 10 subjects. ● The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect. ● Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview.

Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up. ● Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect.

The photo pack should be presented by the officer to each witness separately. ● The photo pack must be presented sequentially and not as a package. ● In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness. ● Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone.

This can only cast suspicion on any identification made and raise concerns that it was reinforced.