Her Majesty the Queen - v. -, 2020 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 37 Date: October 30, 2020 Information: 991093310 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Verena Marie Adele Daniels Appearing: Ms. Mary A. Larson For the Crown Ms. Estelle Hjertaas For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] In the early hours of June 10, 2019, an acquaintance asked Verena Daniels to drive him somewhere. The acquaintance was Drake Merasty – although Ms. Daniels only knew him as “Drako”. Mr.

Merasty said he had a car but was too intoxicated to drive. The location was only a few blocks away. Concerned that Mr. Merasty might cause a disturbance if she declined, Ms. Daniels agreed and drove him to his desired destination. During that trip, the vehicle came to police attention because a patrol officer was suspicious that the driver might have been trying to avoid his police vehicle. Ms. Daniels drove down an alley and parked the vehicle. Soon thereafter, the police arrived. When they did, Mr. Merasty left the vehicle and walked the other direction. Ms.

Daniels was standing by the vehicle when police arrive with the keys in her pocket.

[ 2 ] The vehicle had been stolen a few days prior and Ms. Daniels is charged with possession of stolen property. While Ms. Daniels readily acknowledges that she was driving the vehicle, she denies that she knew it was stolen when she started driving it. On the other hand, while driving Mr. Merasty to his destination, she started to become suspicious because of Mr. Merasty’s conduct. Ms. Daniels stopped the vehicle a short distance later at a location she said was Mr. Merasty’s destination. Ms. Daniels candidly admitted that, when she saw the police arrive and Mr.

Merasty walked away, she realized the car was probably stolen. [ 3 ] Having considered the evidence in these proceedings, I find that it is not possible to conclude that Ms. Daniels knew or must have suspected that the vehicle was stolen when she began driving it. Furthermore, I am also not satisfied beyond a reasonable doubt that she drove evasively. Thus, guilty knowledge cannot be inferred from the manner of her driving. Finally, while Ms.

Daniels admitted that she suspected (maybe even knew) the vehicle was stolen when the police arrived, I am not satisfied that she continued to have the intention to possess the vehicle at that point in time. Simply put, while the Crown has proven all the requisite elements of possession, I am not satisfied beyond a reasonable doubt that these elements co-existed simultaneously. [ 4 ] As a consequence, I find Ms. Daniels not guilty of the charge of possession of stolen property. These are my reasons for coming to this conclusion. THE EVIDENCE [ 5 ] A trial was conducted on September 11, 2020.

The Crown called two witnesses - one civilian and one police officer. In addition, Ms. Daniels testified on her own behalf. Crown Evidence - Maureen Olson : [ 6 ] In March of 2019, Maureen Olson purchased a grey 2015 Kia Sorento for approximately $32,000.00. On June 7, 2019, Ms. Olson noticed that her vehicle was missing from the front of her house. In retrospect, Ms. Olson speculates that she may have inadvertently left the fob (key) in the vehicle when she was bringing in her groceries. Ms. Olson immediately reported the vehicle stolen. [ 7 ] Four days later, Ms.

Olson received a phone call from the Prince Albert Police Service indicating that her vehicle had been located and asking her to come pick it up. Ms. Olson and her husband were taken to her vehicle by the police. After some difficulty, her husband started her vehicle and drove it home. Ms. Olson’s vehicle had been cleaned out and none of her belongings were left inside. Ms. Olson also testified that her vehicle had to be taken to a garage because it was experiencing electrical problems of some kind. Ms. Olson testified that, because of the electrical problems with the vehicle, it may not be reparable.

Crown Evidence - Constable Horace Ratt : [ 8 ] Constable Ratt is a member of the Prince Albert Police Force. He was on duty in a marked police cruiser on June 10, 2019. Just prior to 5:00 a.m. while on patrol in his vehicle, the officer noticed a motor vehicle that appeared to take evasive action when he got close to it. The vehicle was a Kia SUV. Constable Ratt described the vehicle accelerating to a high rate of speed and then rapidly turning down a back alley after the police cruiser would have been visible to the driver.

Constable Ratt drove around to the other end of the alley and radioed for another officer to assist. [ 9 ] When other officers arrived a few minutes later, Constable Ratt entered the alley and observed the subject vehicle. When the officer saw it, it was unoccupied with Ms. Daniels standing nearby. There was a male walking further down the alley. Constable Ratt did not deal with that individual, who was detained and questioned by the other officers.

Constable Ratt was informed that this individual’s name was Drake Merasty. [ 10 ] Constable Ratt searched the licence plate number of the subject vehicle on the Canadian Police Information Centre (CPIC)

and was informed that it had been reported stolen. Constable Ratt approached Ms. Daniels and asked her name, which she gave. The officer informed Ms. Daniels that she was being detained for investigative purposes. The officer conducted a brief pat down search and located the key fob for the vehicle in one of her front pockets. The vehicle was stopped in a parking area – a graveled area adjacent to and off the travelled portion of the alley. [ 11 ] Constable Ratt described Ms. Daniels’ attitude as a little uncooperative (at least initially) but not rude.

She provided her name and admitted she was driving the vehicle. When asked what the officer meant by “uncooperative”, he indicated that Ms. Daniels had provided him with an explanation for why the vehicle was there that the officer did not believe made sense, namely that “Drake give it to me”. Constable Ratt searched Ms. Daniels’ name on CPIC and learned that she was wanted for an outstanding warrant. Constable Ratt arrested Ms. Daniels for outstanding warrants and possession of stolen property at 5:09 a.m. on June 10, 2019.

Defense Evidence - Verena Daniels : [ 12 ] Verena Daniels testified that in June of 2019 she was living with her aunt in an apartment in Prince Albert. At approximately 4:00 a.m. on June 10, 2019, someone she knew as “Drako” (Drake Merasty) came to her aunt’s apartment, knocked on the door, and asked Ms. Daniels to go for a ride with him (to drive him). Ms. Daniels immediately observed that this person was high on something – very high. Mr. Merasty had a key fob which he gave to Ms. Daniels. She agreed to go with him. In cross-examination, Ms.

Daniels was asked why she would agree to go with someone she did not know that well in the middle of the night. Ms. Daniels testified that she did not want Mr. Merasty in the apartment and that she was concerned that he might cause a disturbance at her aunt’s apartment if she refused his request. [ 13 ] When they got to the vehicle, Mr. Merasty showed her how to use the key fob to start the car. Ms. Daniels said the vehicle looked new and she did not observe any damage to it. She did not describe any difficulty in starting or operating the vehicle. The place that Mr.

Merasty wanted to go was only a few blocks away. Ms. Daniels testified that Mr. Merasty wanted to go the white townhouses adjacent to where she parked the car and where the police found her and the vehicle. [ 14 ] Ms. Daniels testified that she had not known Mr. Merasty for very long but that she knew he did not own a vehicle. In her words, “everyone knows Drako” – he uses drugs and is a “hustler”. Ms. Daniels testified that she did not think about how Mr. Merasty came to have possession of this vehicle, including whether or not it was stolen. On the other hand, Ms.

Daniels readily admitted that when she was driving Mr. Merasty to his destination “she just knew that she was going to be in trouble for being there”. Ms. Daniels said she began feeling this way because Mr. Merasty was sweating and acting paranoid. After she parked the car and after the police arrived, Mr. Merasty immediately walked in the other direction. At this point, Ms. Daniels realized the vehicle was probably stolen. [ 15 ] Ms. Daniels testified that she saw the police cruiser when she was driving. However, she denied making any evasive actions, including speeding or rapidly turning into the alley. Ms.

Daniels testified that she drove down the lane and parked. She also explained that the location where she stopped the car was beside the place that Mr. Merasty wanted to go. Ms. Daniels testified that, prior to the police arriving, it was her intention to walk home. When the police arrived, Ms. Daniels said she stayed near the vehicle and cooperated with police. [ 16 ] In retrospect, Ms. Daniels admitted that she should have known the vehicle was stolen but she denied suspecting that it was stolen at the time she agreed to drive it. Ms. Daniels testified that she had just woke up when Mr.

Merasty asked her to drive him and his destination was only a few blocks from her place. In addition, Ms. Daniels testified that, just prior to June 10, 2019, she had been diagnosed with stage 2 brain cancer and that she was very distracted by that diagnosis. ANALYSIS [ 17 ] To obtain a conviction, the Crown must prove that Ms. Daniels had control over the stolen vehicle, that she knew the vehicle was stolen, and that she intended to possess that vehicle. [ 18 ] There is no dispute that the vehicle that Ms. Daniels was driving on June 10, 2019 was stolen. There is also no dispute that Ms.

Daniels exercised control over the vehicle as she was driving it. The issue in these proceedings is mens rea – whether or not the Crown has proven beyond a reasonable doubt that Ms. Daniels knew the vehicle was stolen, together with a continuing intention to possess it.

[ 19 ] Mens rea is the mental element of an offence – it is about Ms. Daniels’ state of mind and what she knew about the car she was driving. Evidence of a person’s intention or knowledge may be found in direct evidence (such as Ms. Daniels’ own testimony) or it may be inferred from the totality of the circumstances based on the evidence of others, including signs of forced entry, the presence of unlawful items including drugs or weapons, the presence of other apparently stolen items, and efforts to evade police.

In criminal proceedings, the mental element of an offence – in this case guilty knowledge – must be found in the evidence and must be proven beyond a reasonable doubt. [ 20 ] An inference of guilty knowledge has been accepted by the courts in circumstances crying out for further inquiries by an accused person where only willful blindness would have prevented actual knowledge. For example, the Court in R v Cantrill , 2011 ABQB 273 at paras 63 and 90 , 514 AR 265, utilized the concept of “willful blindness” in finding the element of knowledge had been made out.

See also: R v Briscoe , 2008 ABCA 327 at paras 19-20 , 237 CCC (3d) 41. These cases stand for the proposition (well founded in logic and common sense) that a judge may impute knowledge on the part of an accused in circumstances where that person “virtually knew” of the presence of an illicit item but deliberately failed to make inquires because he/she did not want to know the truth. In the context of these proceedings, an inference of knowledge can be imputed if I am satisfied beyond a reasonable doubt that Ms.

Daniels must have perceived a substantial risk that the car she was driving was stolen and she agreed to drive the vehicle in the face of an obvious risk by not enquiring further. It should be noted that willful blindness requires more than mere recklessness. It requires a well- founded suspicion – something that is closer to knowledge of a probability than suspicion of a possibility. See: R v April , 2017 SKPC 42 at para 35 . [ 21 ] The Crown takes the position that Ms.

Daniels either specifically knew the vehicle was stolen or that she was willfully blind to that potential in light of the circumstances on the evening of June 10, 2019. The Crown argues that, at the very least, Ms. Daniels must have suspected that the car was stolen because she knew that Mr. Merasty did not own a vehicle and because of how he was acting. The Crown also argues that Ms. Daniels took evasive action after seeing a police cruiser and that these actions are consistent with guilty knowledge. Finally, the Crown notes that Ms.

Daniels still had the keys in the pocket when she was stopped by police demonstrating a continuing intention to possess it even after she stopped driving. Did Ms. Daniels know the vehicle was stolen when she first took possession of it ? [ 22 ] Ms. Daniels took possession of the vehicle when she began driving it. She had control of the vehicle, as well as the intention to exercise that control. However, does the evidence establish beyond a reasonable doubt that she knew (or ought to have known) that the car was stolen when she began driving it? [ 23 ] Ms. Daniels admitted knowing several things at that point. Mr.

Merasty had the keys to a new looking car. Ms. Daniels knew he did not own his vehicle (apparently everyone knew that because he was a drug user and hustler). Finally, she knew that Mr. Merasty wanted to go somewhere in the car, but he was too intoxicated to drive. [ 24 ] Ms. Daniels denies that she knew the vehicle was stolen when she began driving it. Her testimony was plausible, cogent and sufficient to raise a reasonable doubt that she knew the vehicle was stolen.

However, was her lack of knowledge merely the result of willful blindness? [ 25 ] It is an unhelpful stereotype to assume that a drug user and “hustler” could never lawfully have possession of a nice car. Some people might have been suspicious that the vehicle was possibly stolen at that point. However, when Ms. Daniels began driving the car there was no evidence (other than Mr. Merasty’s status as a “hustler”) that would have signaled that the car was stolen. The key fob functioned properly and there was no visible damage to the vehicle consistent with forceable entry.

There were no unusual or unlawful items in the vehicle, such as drugs, guns or anything that might appear to have been stolen. Based on the information available to Ms. Daniels at that point in time, it is not possible to conclude that she must have suspected – must have had a well-founded suspicion that the car was probably stolen and that she decided to drive it in the face of that obvious risk. Did Ms. Daniels become aware the vehicle was stolen at some later point ? [ 26 ] Ms. Daniels admitted that two facts came to her attention while she was driving the car. First, Mr. Merasty was acting suspiciously. Ms.

Daniels said he was nervous and acting paranoid. Second, the police showed an interest in the vehicle Ms. Daniels was driving.

[ 27 ] Constable Ratt testified that he observed the vehicle taking what he perceived as actions to avoid police involvement – speeding and then rapidly turning down a back alley. In her testimony, Ms. Daniels admitted to seeing the police cruiser but denied that she took any evasive actions, including speeding. Ms. Daniels testified that she drove down the alley in question and parked where she did because that was Mr. Merasty’s desired destination. Ms. Daniels’ testimony was plausible. More importantly, it was sufficient to raise a reasonable doubt in my mind as to whether or not she took evasive actions.

As a result, it is not possible to conclusively infer guilty knowledge based on the manner of her driving. [ 28 ] Ms. Daniels testified that at some point while she was driving, she came to the realization that “she was going to get in trouble for being with Drako”. Ms. Daniels did not offer nor was she pressed on when she came to that realization. However, it appears that she did so just prior to or when she stopped the car. Ms. Daniels testify that she realized the vehicle was probably stolen when the police arrived in the alley and Mr. Merasty started walking away and ignored her.

At that point in time, I have no doubt that Ms. Daniels knew the vehicle was stolen or at least felt there was a substantial risk of that probability. On the other hand, I am not satisfied that the evidence establishes that this realization occurred at any point prior to when the police arrived, and Mr. Merasty walked away. Did Ms. Daniels intend to possess the vehicle at any point after she knew it was stolen? [ 29 ] The Crown argues that Ms. Daniels’ continued possession of the key fob was indicative of a continuing intention to possess the car – a car which by that point in time she knew was stolen.

On the other hand, it is also important to note that, at that point in time, the car was parked, Ms. Daniels had stopped driving, and she was no longer in it. Ms. Daniels testified that it was her intention to walk home prior to the police arriving. Ms. Daniels also testified that she tried to return the key fob to Mr. Merasty but he just walked away when he saw the police. As Ms. Daniels put it, he left her “hanging”. Simply put, Ms. Daniels says she tried (albeit unsuccessful) to give up possession of the vehicle as soon as she suspected that it was stolen. Ms.

Daniels’ evidence is plausible and consistent with what she told Constable Ratt, namely that the car belonged to Mr. Merasty. This evidence supports the conclusion that, once Ms. Daniels became aware the vehicle was probably stolen, she no longer intended to possess it. CONCLUSION [ 30 ] While all three of the elements of possession have been proven by the Crown, the Crown has not established that the required elements of mens rea co-exist simultaneously. When Ms. Daniels was in possession and control of the vehicle, I am left with reasonable doubt that she knew it was stolen.

When she knew the vehicle was stolen, I am left with reasonable doubt that she continued to hold the intention to possess it. [ 31 ] For the foregoing reasons, I am not satisfied beyond a reasonable doubt that Ms. Daniels possessed the requisite mens rea . As a consequence, I find Ms. Daniels not guilty. Dated this 30 th day of October, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J