2016 MBPC 70, 2016 MBPC 70

Cite # 2016 MBPC 70 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Peter Edgett, for the Crown ) - and - ) ) Benjamin Thomas Allen ) Karl Gowenlock, for the Accused ) ) Judgment delivered: ) December 7, 2016 CORRIN, P.J. [ 1 ] The accused is charged as follows: BENJAMIN THOMAS ALLEN on or about the 18 th day of May in the year 2013 at the Rural Municipality of East St. Paul in the Province of Manitoba, did by deceit, falsehood or other fraudulent means defraud Manitoba Public Insurance of money exceeding five thousand dollars contrary to Section 380(1) (

a) of the Criminal Code . [ 2 ] The trial of this matter was held before me between October 17 th and 21 st , 2016 inclusive. An agreed statement of facts was presented to the court and filed as Exhibit 1 in the proceedings. The following is the text provided to the court as set out in such exhibit: 1. The accused purchased a 2001 Pontiac Firebird Trans Am WS6, Vehicle Identification number 2G2FV22G212107041 (Trans Am) from Nott Auto Corporation (Nott) on May 12, 2012 in the City of Winnipeg in the Province of Manitoba; 2.

The Trans Am was purchased for $17,750 plus taxes for a total cost of approximately $20,320; 3. It was a custom order that took staff at Nott approximately 1 month to locate; the make and model were specifically requested by the accused; 4. Nott purchased the Trans Am at an auction in Harrisonburg, Virginia, USA on May 7, 2012 and had it returned to Winnipeg; 5. The Trans Am came with only one set of keys (1 ignition, 1 – remote, 1 small key for the glove box/T-Top). The accused never had another set of keys produced while he owned the vehicle. 6.

There were two previous owners before Nott’s purchase; both of them were also from Virginia. 7. This vehicle was equipped with a Pass Key II (PK2) standard theft deterrent system “VATS”, with a resistor pellet in the key and two sensors in the steering column. 8. In May of 2013 the accused worked at the Pro Shop of the Rossmere Golf and Country Club. It was a seasonal job that he had for the past 7 years.

9. On Saturday, May 18, 2013, the Rossmere Golf and Country Club had their Men’s Open Golf Tournament, the official start to the golf season for members. The accused was working that day and helped organize the tournament before teeing off himself that day. 10. The accused’s Tram Am was parked on the Rossmere Golf and Country Club parking lot. 11. The accused’s Trans Am was involved in a single vehicle collision on Henderson Highway near Southlands Drive in East St. Paul on the evening of May 18, 2013. After the collision, the driver of the Trans Am climbed out a window and ran off.

Civilians at the scene called 911. Despite the search efforts of several responding police units, the driver made good on his escape. The police did not find any keys in the Trans Am. 12. Prior to the collision, the Trans Am went through a red light camera at a rate of speed of 96 km/h in a 60 km/h zone at the intersection of Henderson highway and Gilmore Avenue which is near the Rossmere Golf and Country Club. A production order obtained by the East St. Paul RCMP resulted in the production of a red light ticket which purports to show the Trans Am going through the intersection at 9:27 p.m. on May 18, 2013. 13.

On May 21, 2013, the accused opened a total theft claim with Manitoba Public Insurance (MPI). The Trans Am had been insured by MPI on May 18, 2013. The accused told the MPI call centre representative that he still had the key to his Trans Am. 14. On May 23, 2013, the accused attended the MPI Gateway claim centre and provided adjustor Drew Keating with a sworn statement declaring that his Trans Am had been stolen. Included in that statement were comments that the accused had only one ignition key for the Trans Am and that he had it all night on the evening of May 18, 2013.

The accused also advised that the never made a second key and his Blackberry cell phone was in the Trans Am when it was stolen. 15. The accused surrendered the ignition key to Drew Keating who forwarded it to the MPI compound. 16. On May 27, 2013, the Trans Am was estimated at the compound and determined to be a total loss of $16, 600 in collision related damage. The Claim was referred to MPI’s special investigation unit. 17. On June 4, 2013, Dan Berry, a locksmith hired by MPI to inspect the Trans Am, located the accused’s missing Blackberry during his examination of the Trans Am.

The Blackberry was turned over to an MPI investigator. 18. When the Blackberry was powered up by the investigator, the front page showed that there were 2 Facebook requests; 2 voice mails; and 6 unopened text messages. Both Facebook requests and 3 of the unopened text messages were from May 19, 2013 and beyond.

Images recovered on the Blackberry show that on May 18, 2013 the accused and two other individuals had the following text message conversations: Derek 12:59pm What time are you golfin till Me (accused) 1:30pm Done 7 holes now started at 11 then got dinner so maybe 6 or 7ish Derek 1:51pm Kk Derek 7:55pm What r u doin tonight Me (accused) 8:19pm No fuckib clue pretty licked lol wbu Derek 8:22pm Lol fuck all just at boston pizza not staying for long tho Derek 8:33pm U just going home after Derek 9:06pm ?? Me (accused) 9:21pm I dunno know u waNna. Bunn lol Derek 9:22pm Yee

Me (accused) 9:25pm Comin now lol? Derek 9:31pm Yee Derek 9:55pm Where u at Derek 10:30pm You alive? Turk 7:24pm You play today? Me (accused) 7:36pm Yeeeeee buddy Turk 7:38pm How’d it go Me (accused) 8:22pm Fuckin redic still there Turk 8:22pm Lol when do I work next can you check? Me (accused) 9:16pm Work 2 tomorrow wbu Turk 9:28pm You’re stoned I said check for me when I work next Turk 9:44pm Are you fucking fried 19. 3 of the unopened text messages were from these two text conversations. The last two texts from Derek were not opened nor was the last text from Turk. 20.

On November 13, 2013, the accused’s MPI claim was denied without any payout occurring to the accused. [ 3 ] On May 23, 2013 as aforementioned, the accused provided MPI adjuster Drew Keating with a sworn statement (Exhibit 6 in the proceedings) disclosing that his vehicle had been stolen from the Rossmere Golf Club while he’d been inside the clubhouse and that he’d last seen the car somewhere between 8:30 and 8:45pm. The statement also indicated that Mr. Allen had gone to a friend’s house after leaving the golf course and hadn’t checked to see if his vehicle was still parked outside when he departed.

He told the adjuster that he didn’t know about the theft until returning to his home and being advised of same by his mother later that evening, around 11:45pm. Mr. Allen further informed Keating that he had locked the vehicle when he’d last visited it. Mr. Keating told the court that Mr. Allen also disclosed that based on what he’d been told by police about the time of the accident, he believed that he must have still been in the clubhouse when his vehicle was stolen.

Evidence re: the time of the accident [ 4 ] A witness to the accident, Heather Stekler, told court that she checked her cell phone record and determined that she’d made a 911 call respecting same at 9:37pm. She estimated that such call could have occurred within 5 to 7 minutes after the accident. Another eye witness, Nate Omeniuk estimated that the accident had happened between 9:30 and 10pm. He also related that he’d called 911 approximately 5 minutes after witnessing the accident.

RCMP Constable Tanya Lechelt told court that she had been dispatched to the accident scene shortly after 9:30pm and that she was familiar with the photo radar location that the vehicle had passed through at a speed of 96km/hr at 9:27pm. Referring to a map (exhibit 12) she located same as also being on Henderson Highway, just a few kilometres south of the accident scene, a short distance north of the Chief Peguis Trail.

Omeniuk recollected that the driver of the accident vehicle was travelling at a “high speed – way too fast for the rainy conditions.” The court, on the basis of this evidence, estimates that the accident occurred roughly between 9:30 and 9:32 or 9:33pm. Description of driver [ 5 ] As previously mentioned there were two eye witnesses who provided information to Constable Lechelt, Ms. Stekler and Mr. Omeniuk. Both testified for the Crown at trial.

Stekler told court that the person she had seen, and attempted to speak to, was between 5’10” and 6 feet tall, with “scruffy, short hair”, Caucasian and male… that he wore black sweat pants with three white stripes down the sides of the pant legs and a red Tee shirt… that the man had “hobbled” when he walked and had “held his right side.” [ 6 ] Mr. Omeniuk testified that the person was slightly taller than himself. He told court that he is 6 feet tall. He further recollected that the driver had been running in a manner that suggested he had been injured and wore a “red shirt”.

The only other detail he provided related to seeing the driver sitting in some bushes for a brief period of time after the accident, then start walking back towards the vehicle, stopping and then running away from the scene. [ 7 ] Constable Lechelt visited the accused’s residence later that evening, at just after midnight. She told court that he was then wearing a “deep wine-red maroon purple” collared and buttoned golf shirt with numerous white stripes across the front and black dress slacks” which she described as being similar to trousers worn by Crown counsel in the courtroom.

She also related that he was a bit “heavier” than the description she’d been given by the two eye witnesses at the scene, that they’d both told her that the driver was on the leaner side. She also testified that she’d seen no visible injuries and hadn’t perceived him as being injured for any other reason, such as

his manner of standing or walking. Because she knew the area where the driver was seen to be hiding and walking was “swampy” she checked for mud on Allen’s slacks but saw nothing of the sort. Lechelt also testified that the accused’s hair had been brushed (heavily gelled) and styled and not scruffy or messy as described by Stekler. She also told court that when she’d first arrived the accused’s parents had shown her a pair of black and white golf shoes that they said that the accused had been wearing when he came home approximately a quarter hour earlier.

The shoes, which we later learned were fitted with plastic cleats, bore some signs of being muddy which the accused’s father suggested would have been attributable to having been worn for golf earlier that day. Lechelt told court that when she questioned the accused about his whereabouts at the time of the accident Allen had told her he had been drinking at the golf club earlier (something she said she had suspected because of his flushed face, the odour of alcohol on his breath and the glossy, bloodshot appearance of his eyes) and for that reason had obtained a ride home from a friend.

Evidence of vehicle theft [ 8 ] The Crown, presumably because it’s case is largely based on circumstantial evidence only called two witnesses, both experts in their respective fields respecting this subject. The first witness, Jeff Selch, was an expert on vehicle anti-theft systems. [ 9 ] Mr. Selch’s Inspection Report to MPI (exhibit 9) was filed by the prosecution and is attached as Appendix A to this decision.

Such report disclosed the following findings after inspection of the Trans Am vehicle. • The steering column had no visual signs of damage; • A mechanically cut key is required to rotate the ignition lock cylinder from the locked position to the start position; • There were no indications of an aftermarket remote car starter ever having been installed in the vehicle; • There were no indications of any wire manipulation for the purpose of defeating the factory immobilizer system [ 10 ] Mr.

Selch testified that the PK2 theft deterrent technology used by the vehicle’s manufacturer has two sensors in the steering column which will only permit the car to start if they identify specific resistor code resistance value which is programmed into a resistor chip which is embedded into the key at the factory. He elaborated that a person who had the opportunity, know-how and appropriate electronic equipment could measure the original key’s resistor value and then purchase a resistor to duplicate or match the original chip’s value.

Such a resistor could then, if the person were to defeat the door locking mechanism of the vehicle (the accused told MPI and the court he had locked the vehicle after last visiting it on the evening in question) be used to replicate the immobilizer function of the key chip. It was Mr. Selch’s evidence that someone at a G.M. dealership could also easily determine the resistance value of the chip if they had the original key and their dealership was equipped with key reading equipment, equipment which he said was not owned by all dealerships.

He went on to relate that the VATS system employed by the manufacturer relies on 15 different resistance values and that no one could start the car without knowing which of the 15 to employ unless they completely circumvented the key/ignition system which would entail damaging the vehicle’s ignition lock cylinder and manipulating some wires in the steering column. [ 11 ] It was Mr.

Selch’s opinion that the factory VATS immobilizer system in the vehicle was operating normally on the evening of the accident; also that there were no indications of wires being manipulated for the purpose of defeating the immobilizer system.

The foregoing, he concluded, in conjunction with the absence of damage to the ignition lock cylinder and the fact that the vehicle’s immobilizer system still worked properly post-accident indicated that a mechanically custom-cut ignition key embedded with the correct resistor chip had been employed to start the vehicle pre-accident. [ 12 ] The second expert called by the Crown, Daniel Barry, was qualified as an expert on vehicle door locking mechanisms as well as methods employed to defeat anti-theft systems.

Barry told court that he too had inspected the vehicle after the accident and had found no signs of forced entry or “attack” damage to any of the vehicle’s door locks. It was Mr. Barry’s opinion that detachment of the passenger door lock rod was due to collision damage and not attributable to “attack” damage perpetrated by a thief. Like Mr. Selch, he told court he’d found no damage to the vehicle’s steering column. [ 13 ] The Crown filed Mr. Barry’s post-accident Inspection Report as exhibit 15 in the proceedings. The Report provided detail respecting the findings made by Mr.

Barry and essentially concurred with Mr. Selch’s opinion respecting the immobilizer system, that the vehicle’s ignition lock cylinder had shown no signs of being defected and that a custom encrypted VATS key had been needed to start and run the vehicle prior to the accident. [ 14 ] A copy of Mr. Barry’s Inspection Report is attached hereto as Appendix B to this decision.

Defence Evidence The defence called five witnesses: the accused, his mother Susan Allen, Garry Michalick and his son Kyle as well as his self-described closest friend, Derek Rewucki. [ 15 ] Rewucki and the Michalicks were in contact with the accused on the evening of the accident. Garry Michalick recollected that he’d spoken to Mr. Allen shortly after the tournament’s dinner and prize ceremony had concluded.

He estimated that the time could have been between 9 and 9:15pm, based on when his wife arrived to pick him and his two sons up, which he recollected was about a half hour after their conversation between 9:50 and 9:55pm. He was pretty sure they’d arrived home at just after 10 as he remembered his son Kyle stating that he was going out with some friends and his wife wanting to know why he was going out after 10, joking that it was getting late. [ 16 ] Kyle Michalick, a friend and work colleague, also recollected talking to the accused after the prize ceremony.

The conversation, he said, was interrupted by his father approaching them and advising that his mother had arrived to pick them up. He reckoned that he’d arrived home at about 10pm. He also recalled offering Ben Bishop a ride home, an offer that was rejected without a reason being given.

He was confident that the offer had been made after 9:30, possibly as late as 9:45 in his view. [17] Mr. Rewucki acknowledged that he’d been in intermittent texting contact with Mr. Allen throughout the early evening and thathe’d made arrangements to pick up the accused at the Rossmere Club so that they could hang out together. He recollected that Mr. Allenhad referred to himself as “licked”, meaning intoxicated, during their text exchange and that was the reason why he’d offered to pick himup. Mr.

Rewucki testified that he’d received Allen’s 9:25 text asking if he was on his way and soon after, within a couple of minutes, hadleft his parents’ East St. Paul residence to pick up his friend, arriving at Rossmere at approximately 9:45pm. He confirmed that theaccused hadn’t come out of the clubhouse to wait for him, notwithstanding their recent exchange and arrangements. He went on to advisethat he’d then sent Mr. Allen the 9:55 text “Where u at”, inquiring if he were coming out, that he’d received no response.

It was histestimony that he’d then left about 5 minutes later without going inside to look for his friend.

When challenged to explain why he’d leftwithout any effort to find Allen he claimed that this had always been his practice when the accused had stood him up in this fashion.When challenged as to why he would be so seemingly callous and uncaring for his drunken friend’s well-being he explained that henever tolerates Allen’s bad behaviour when he was intoxicated, stating that he’d confronted this type of situation on previous occasionsand had neither the patience nor the personal tolerance to put up with it; that he would not make inquiries, he would always just drive offand leave Allen to his own devices.

This notwithstanding, he agreed that he’d sent one more text at around 10:30, after he’d arrivedhome, inquiring as to the accused's well being… the “You alive?” text. Interestingly he transmitted no more such inquiries afterreceiving a call from the accused’s mother respecting the accident. According to Rewucki, the call was worrisome as his friend couldconceivably have been injured in an accident, but he didn’t attempt to make text contact because there was nothing he could do about it.Mr.

Rewucki further testified that there had been no contact between him and the accused for two days after the accident, even thoughhe’d sent Mr. Allen some texts. According to Rewucki, Allen later told him that a fellow employee, Ryan Turk, drove him home fromthe club on the night of the accident. [18] Ben Allen testified that he’d been in his vehicle for the last time shortly after 9pm, not between 8:30 and 8:45 as he’d reported in the May 23rd, 2013 Theft Report (exhibit 6). He recollected smoking a cigarette and texting Derek Rewucki from the vehicle.

He thoughthe’d sent the 9:25 text message inquiring whether Rewucki was on his way well before 9:25 and that such time related only to when itwent through, not when he actually transmitted the text. [19] It was his evidence that he’d forgotten his cell phone in the vehicle even though he was awaiting word as to when Rewuckiwould be picking him up. According to the accused he’d stayed inside the clubhouse socializing until approximately 11:30 when RyanTurk had given him a ride home, that he’d never gone back to have another smoke or recover his cell phone. According to Mr. Allen itwas not a “big deal” that Mr.

Rewucki hadn’t fulfilled his social commitment to pick him up and spend the rest of the evening smokingmarijuana together. He recollected, on examination, that Ryan Turk had driven him home around 11:30 and that they had driven aroundthe general neighbouring area for 5 minutes before driving to the house he shared with his parents. There was no mention of going to Mr. Turk’s house, something that he’d reported in his May 23rd Theft Report (exhibit 6) to the MPI adjuster Mr. Keating. When asked by theCrown why he hadn’t given Mr.

Turk’s name to Constable Lechelt the accused told court that he’d given only his boss, Mr. Yahiro’sname, because he’d been at the club with him that night and that he’d also volunteered to provide other alibi related names to her if shewanted same. It was his evidence that he would have provided Turk’s name if she’d asked for other names.

Court was also told that hehadn’t changed his white/black golf shoes after the golfing ended, evidence which was later contradicted by a notation made by his own mother at a meeting she’d attended on September 6th, 2013, which I will refer to when I review her testimony. [20] The accused conceded that he was quite drunk at around 9:30pm, testifying that he would have been a 6 out of 10 on hispersonal intoxication index at such time.

However, he adamantly denied the Crown’s assertion that he’d been driving the vehicle at thetime of the accident and that he had fabricated the theft scenario to avoid MPI’s denial of his claim.

He also professed that he’d failed tomake a theft report to Winnipeg Police Service, as instructed by Constable Lechelt the morning of the accident, because he thought theRCMP would be responsible for the theft investigation notwithstanding that he acknowledged that she had told him “You have to followup with Winnipeg police” in the general context of this subject matter. [21] The accused’s mother Susan Allen testified that she had spoken to Mr.

Rewucki shortly after being informed of the accident byConstable Lechelt and he had informed her that he and her son had made arrangements to meet earlier that night but the accused had“never showed up”. She stated that she discerned no visible injuries or apparent disabilities when she saw her son at home aroundmidnight. She also testified that she’d seen no mud on his clothes. In this regard she also confirmed that she had not personally seen himat the time of his arrival, that she and her husband had been at the accident scene when her other son had phoned to advise that theaccused had come home. [22] Ms.

Allen’s evidence conflicted with the accused’s testimony respecting certain matters. She recollected telling the accused thatshe was going to call Winnipeg Police and report the vehicle theft as Constable Lechelt had instructed them and that she’d done so bytelephone soon afterwards; in the early morning hours soon after Lechelt had left their residence.

Another such seeming contradiction,one that I have previously touched on earlier in this decision, arose with respect to a notation she had recorded in a personal notebook during a September 6th, 2013 meeting she and the accused had attended at MPI adjuster Bill Napier’s office. This notation, “Left phoneafter changing shoes in car” was in reference to her son telling Napier that he’d changed his golf shoes in his vehicle when he’d lastvisited the car.

In court the accused asserted that he’d worn them all day, that he hadn’t changed into another pair of golf shoes orconventional uncleated shoes between arriving at the club and coming home at around midnight.

Law [23] This case largely turns on the credibility of the accused as the Crown’s case is essentially circumstantial as the evidence of theidentity adduced through the two eyewitnesses to the accident, evidence that I will review later in this decision, is less than conclusive.With circumstantial evidence, in order to convict, I must be satisfied beyond a reasonable doubt that the only rational inference, based onhuman experience and common sense, that can be drawn from same is that the accused is guilty (see R. v. Griffin, 2009 SCC 28 atparagraph 33).

Inferences consistent with innocence do not have to arise from proven facts. The issue with respect to circumstantialevidence is the range of reasonable inferences that can be drawn from it (see R. v. Villaroman, (2016) 2016 SCC 33 , SCJ No.33). When assessing circumstantial evidence the trier of fact should therefore consider other plausible theories and other reasonable

possibilities which are inconsistent with guilt. But such other theories or possibilities must be based on logic and experience applied tothe evidence or the absence of evidence, not speculation. [24] Given that the accused testified in his own defence I must apply R. v. W.(D.), (1991) (SCC), 1 S.C.R. 742. W.(D.) established the following analytical approach in such circumstances (see Cameron, J.A., paragraph 16, R. v. Menow, 2013 MBCA72): 16 Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt.

In W.(D.), theSupreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’sevidence” (at p.757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonabledoubt about the guilt of the accused. To ensure the trier of fact remains focussed on the principle of reasonable doubt, the courtsuggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [25] I must therefore first decide whether I believe the evidence of the accused or have been left in reasonable doubt by it.

Inconsidering her testimony, I must consider his evidence in the context of all the other evidence that supports the Crown’s case (see R. v.Menow and R. v. Hoohing, 2007 ONCA 577). Analysis [26] There are many inconsistencies and incongruencies in the evidence of the accused, including: • The accused told court he hadn’t changed his golf shoes on the day of the incident but related that he had done so wheninterviewed by MPI adjuster Napier on September 6, 2013. And of course, as argued by the Crown, given that golfing was over, whywould he have changed from one set of cleated golf shoes to another in any event?

The Crown suggested that the difference in impartedinformation was attributable to the accused getting his ‘stories’ mixed up, because neither version was actually truthful; • The accused, in his May 23rd, 2013 MPI Theft Report indicated that he’d last seen his vehicle at about 8:30 to 8:45pm but testifiedin court that he’d last seen it at just after 9pm.

The Crown, once again, suggested that the inconsistent and different accounts wereattributable to the accused getting his fabricated ‘stories’ mixed up; • The accused had clearly made arrangements to spend the evening with his friend Rewucki between 9 and 9:25pm yet claimed tohave left his only means of communication with Rewucki, his cell phone, in his vehicle when he knew or ought reasonably to haveknown that it would be essential in relation to their connecting and/or meeting when Rewucki arrived at the golf club. The importance ofthe cell phone to Mr.

Allen was underscored by Rewucki’s testimony in such respect. Rewucki told court that their plan to meet wasmade by text and that it was understood by the accused that he, Rewucki, would never leave his vehicle, even to knock on a door, whenhe came to pick Allen up, that he would always drive away if the accused failed to respond to his texts or phone calls in a timelymanner. Mr. Allen’s claimed forgetfulness and failure to come outside to check rings hollow in the context of Mr.

Rewucki’s testimony.It is simply implausible and as such unconvincing; • The accused told court that he had been driven home by Ryan Turk but failed to mention same to Constable Lechelt when heprovided only one alibi witness’s name, a witness who was far less beneficial from the standpoint of his personal interest as a suspect. Itmakes little sense, given the circumstances, that Mr. Yahiro and not Ryan Turk would have come to mind; • The accused told court that he’d been driven home by Ryan Turk but failed to mention such name when he made his May 23rd,2013 Theft Report to MPI.

Such statement only referred to his going to a friend’s house after leaving the golf club that evening. Theaccused also made no mention of going to Turk’s residence in his court testimony. Again, one would have thought the accused wouldhave been forthcoming in providing the name of his principal alibi witness to MPI so that his claim would be expedited, that he wouldn’thave wanted to risk it being denied. And of course, once again, inferences arise from the differing versions. [27] These numerous seemingly inexplicable inconsistencies cause me to question the veracity of the accused’s evidence overall.

Imust therefore consider the evidence of the accused in the context of the evidence as a whole, keeping in mind that some of that evidenceis circumstantial in nature. I therefore must keep the following in mind as well: • There is no evidence that the descriptions of the driver provided by the two eyewitnesses matched the accused’s exact appearanceon the evening in question. The investigating police officer, Constable Lechelt testified that the accused didn’t resemble the person theeyewitnesses had earlier described to her when she interviewed him just after midnight.

One must keep in mind that the reliability of Ms.Stekler’s visual memory was somewhat suspect since she grossly mislocated the accident scene in her testimony, putting it much further

north, near the intersection of Henderson and Hoddinott Road; • There is evidence that the accident quite improbably and in seeming defiance of all basic probability theory, coincidentallyoccurred in a location that was more or less directly en route to and only a few kilometres away from, Mr. Rewucki’s semi-ruralresidence; • There is no air of reality to the testimony of Mr. Rewucki respecting his alleged high intolerance for being kept waiting, and assuch, his evidence that he never searched for Mr. Allen inside the clubhouse should not be believed.

It is the court’s view that it is highlyimprobable that a young man who had driven so far to pick up his best friend on a Saturday night would not take a few minutes to see ifhe could locate his friend rather than choosing to spend his evening all alone; • That the Michalicks’ evidence placed Allen in the clubhouse at about 9:40 to 9:45pm, when the driver had already fled theaccident scene according to the eyewitnesses and Constable Lechelt’s testimony, but was largely based on time recollections that were atthe time of trial over 3 years old.

The court must also be ‘careful’ with their evidence, as they both acknowledged fairly close personalrelationships with the accused and cannot be categorized as completely arms length; • The relatively high improbability, based on the Crown’s two experts’ testimony, that a thief would have been both motivated to aswell as able to have a duplicate immobilizer key cut and equipped with an appropriate embedded chip or alternatively, to have brokeninto the vehicle and circumvented or deactivated the immobilizer. • The relatively high improbability that any thief, even a technically sophisticated one who had cunningly devised to contend withthe vehicle’s high tech VATS security system, would ever have known where the vehicle was located on this particular Saturday night; • And last but not least, if the thief did somehow know the accused would be at the Rossmere golf tournament all day, why wouldthey wait until after the event was or was nearly completely over to effect their purpose when the best opportunity to take the vehicleundetected would have presented when Mr.

Allen was out on the course golfing during the afternoon? [28] The Crown also argued that this court should draw an adverse inference from the failure of the accused to call Ryan Turk as analibi witness. The effect of such inference being in relation to assessing the credibility of the alibi defence. [29] The courts have recently recognized that the failure to call a material witness can reveal an implied admission that the witness’sevidence would have been adverse or to put it nicely, been unhelpful to the accused. The cases fall into two groups.

In the first, anadverse inference may be drawn against a party for failure to produce a witness reasonably assumed to be favourably disposed to thatparty. In the second, the inference may be drawn against a party who has exclusive control over a material witness, but fails to producehim or her without regard to any possible favourable disposition of the witness towards the party. [30] In R. v. Ellis, 2013 ONCA 9, Watt. J.A. cautions that a criminal trial judge should “draw an adverse inference from the failureof a party to call a witness only with the greatest of caution”.

He then explains why as follows: “To draw… an adverse inference against an accused in a criminal trial risks imposing a burden of adducing evidence on the accused,thereby shifting the onus of proof: R. v. Lapensee [2009 ONCA 646 at paragraph 45 and R. v.

Rooke (1988) (BC CA),40 C.C.C. (3d) 484 (BCCA) at p. 518] (see paragraph 49) [31] Watt further describes the “adverse interest” rule or principle as being “rooted in the soil of ordinary logic and experience”,stating that such an inference should only be drawn “where there is no plausible reason for nonproduction, in other words, where itwould be natural for the party to produce the evidence if the facts exposable by the witness had been favourable” (see paragraph 48). [32] Watt also reminds that the adverse inference principle is further conditional to the “right of the party against whom an adverseinference is sought to provide an explanation for the failure to call a witness” (paragraph 47).

No such explanation was put forward bythe defence in the case at bar. The court is therefore unaware of any valid reason why Mr. Turk was not called. [33] Accordingly, I am of the view that the failure to call Mr. Turk does indeed in the somewhat exceptional circumstances of thiscase give rise to a negative inference against the accused as Mr. Turk’s absence as a witness is inexplicable in the circumstances of thedefence raised by the accused given the evidential context of this particular case.

After all, it is only logical that an accused claiming anair-tight alibi that would definitely prove his innocence would call the person who could confirm and corroborate his testimony andthereby assure his acquittal by buttressing his credibility on such a key trial issue. The court emphasizes that it is aware that the Crowncould also have sought permission to call Turk as a witness after the Crown learned of his relevance presumably when the accusedtestified.

However, this individual clearly was described as not only a work colleague of the accused but also his friend, thereby makingsuch an application to directly examine him a dubious proposition to say the least. I stress that the effect of the negative inference in

relation to my weighing of the evidence will only be that Mr. Turk’s evidence, if he had been called by the defence, would have been forsome reason unfavourable to the defence, a situation that negatively reflects on the credibility of the accused in relation to his personaltestimony at trial. Such a conclusion is in my view consistent with the decision of Martin J.A. in R. v. Koffman (1985), (ON CA), 20 C.C.C. (3d) 232 (ONCA) at page 237 and cited with approval by Borins J.A. in R. v.

Marshall, a case in which the OntarioCourt of Appeal held an adverse inference instruction had properly been given to a jury, (2005 Carswell Ont 4716 at paragraph 47). [34] For all the forgoing reasons, including the adverse inference, I rule that the accused’s testimony does not create a reasonabledoubt in relation to this matter. As such I now turn to the third factor set out in the W.(D.) analysis; an analysis of whether, on the basisof the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [35] There is no direct evidence of identification.

The accused was not chosen from a photo pack line-up by an eyewitness. Neithereyewitness actually identified the accused or described the driver in a manner that suggested a strong resemblance between the accusedand the driver. Neither eyewitness was actually asked to do so. Dock identification is not essential. Proof that an accused personcommitted a crime can be accomplished in many different ways.

Identification can be proven by circumstantial evidence but in this caseit must overcome not only the absence of direct evidence but also the negative direct evidence presented to the court by two defencewitnesses, the Michalicks, who placed the accused at the clubhouse after the time of the accident. [36] The Crown relies on the following circumstantial evidence to prove that the accused was the driver of the accident vehicle: • Only one key had been imported to Canada when Nott had procured the vehicle for the accused in the U.S. and such key was inhis possession after the accident; • The thief would have had to carefully premeditate the theft in order to devise a way to duplicate the high-tech VATS keynecessary to start the vehicle as there was no evidence suggesting that the vehicle could have been stolen without such a key; • The thief would have had to know that Mr.

Allen was working at the golf club that day and staying at the club well beyondnormal business hours because of the tournament; • That a thief who had gone to extraordinary lengths to steal a vehicle would not have driven the Trans Am at high rates of speed andin a notably reckless manner, almost inviting police detection shortly after the theft; • That the accused’s cell phone was found inside the vehicle after the accident, suggesting that he had been the driver; • That the accused had made plans to smoke marijuana with Mr.

Rewucki that night and marijuana had been found inside thevehicle at the scene of the accident which was not far from and ostensibly en route to Mr. Rewucki’s place of residence, a considerabledistance from the Rossmere Golf Club; • That I should not rely on Mr. Rewucki’s evidence for the same reasons I have previously provided in this decision; • That Mr.

Allen had a motive to mislead the police and the vehicle’s insurer about his being the vehicle’s driver because he’d beenimpaired by alcohol at the time he had been in the accident; • That the manner of driving and the vehicle’s recorded photo-radar speed suggested the actions of a driver who was impaired; • That the accused generally matched, albeit not exactly, the man that had been seen fleeing from the Trans Am; • That there are no plausible theories or possibilities in evidence which suggest that anyone other than the accused was driving thevehicle at the time of the accident. [37] I concur with the Crown’s submissions as to do otherwise I would have to disregard logic and human experience.

I find it highlyunlikely that any other person could have been driving the vehicle on the evening of the accident and that accordingly the only rationaland reasonable inference that can be drawn from the circumstantial evidence before me strongly suggests that the accused was indeed thedriver. Accordingly, I am able to state that I am satisfied beyond a reasonable doubt from the evidence that the accused has committed

the offence charged. “Original signed by” CORRIN, P.J.