Her Majesty the Queen - v. -, 2017 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 031 Date: March 31, 2017 Information: 90017547 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shane Michael Longman Appearing: Norma Quaroni For the Crown Rod Simaluk For the Accused JUDGMENT SNELL , J INTRODUCTION [ 1 ] Shane Longman is charged with two offences alleged to have occurred on May 8, 2016; driving while disqualified contrary to s. 259(4) of the Criminal Code and evading police contrary to s. 249.1(1) of the Criminal Code. [ 2 ] The issues which arise in this case are:

(

a) Has the Crown proved beyond a reasonable doubt that it was the accused driving the vehicle on the date in question? (

b) If the answer to (

a) is yes, has the Crown proved beyond a reasonable doubt that the accused was “being pursued ” by the police, which is an essential element of the charge of evading police contrary to s. 249.1(1) of the Criminal Code ? [ 3 ] For the reasons provided below, I find the accused guilty of both offences. THE EVIDENCE The Case for the Crown [ 4 ] On May 8, 2016, at about 5:00 p.m., Csts.

Simons and Bowes were in a marked police SUV parked in the right hand curb lane on Pasqua Street operating a device which provides an alert regarding passing vehicles where there is an issue regarding either the registration of the vehicle or the licence of the registered owner of the vehicle. They received such an alert regarding a dark blue Cavalier vehicle which had passed them in the left lane. In response to that alert, they proceeded forward in the curb lane until they were parallel to the suspect vehicle and then pulled in beside that vehicle. Cst.

Simons, the driver of the police vehicle, looked at the driver of the Cavalier and testified that he immediately recognized the accused and advised his partner that the driver was Shane Longman. He further stated to his partner that Mr. Longman’s “MO” was to stop when signalled by the police, but then to immediately take off when the police got out of their vehicle. That this communication took place is confirmed by Exhibit P1, the audio and video recording from the police vehicle. [ 5 ] Mr. Longman moved into the far left turning lane and the police vehicle, with its emergency lights on, pulled in behind.

Both vehicles turned left and within a short distance the Cavalier pulled over to the curb and stopped. Cst. Simons parked behind the Cavalier and got out of the police vehicle, but he had only taken one or two steps forward when, as he had predicted, the Cavalier accelerated quickly away. [ 6 ] The police observed the Cavalier travel at a high rate of speed to the end of the street where there was a stop sign which the Cavalier ignored. It went around a vehicle which had stopped for the stop sign, and turned left at the T- intersection at the end of that street. Cst.

Simons got back into the police vehicle and followed the suspect vehicle, at a normal speed with the emergency lights still on, to the end of the street. Since they could not see the suspect vehicle any longer, Cst. Simons made a u-turn back onto Pasqua Gate and they reported the situation to their communications centre. Cst. Simons testified that he still wanted the Cavalier to pull over, but his expectation was that it would not do so and that they would not continue to pursue it because of the dangerous way the Cavalier was being operated. [ 7 ] Cst.

Bowes stated that they elected not to pursue after the Cavalier accelerated away from them, calling it a “no pursuit policy”. In accordance with that policy, they do not engage in high speed chases because of the danger those create for the public. The hope is that if the police do not chase the suspect vehicle, that driver will return to normal driving behaviour. Thus the public is protected, although the offender will escape arrest at that time. In the result, Cst.

Bowes advised they proceeded to the intersection to determine if they could still see the suspect vehicle and where it was heading, for the information of their communications centre. As there was no sign of the suspect vehicle when they arrived at that intersection, they simply turned back onto Pasqua Gate. The Case for the Defence [ 8 ] The accused and his mother, Linda Puckoski, testified that on May 8, 2016 they spent

almost the entire day together, and, in particular, they were together at 5:00 p.m. at a location in Regina some distance from the locationof the alleged offences. The alibi evidence provided by the accused and his mother was similar enough in content about what they didtogether on the date in question, without being so identical as to times and details, that it appears on its face to be a credible account. Both testified that the date in question was Mother’s Day and that Ms. Puckoski picked up the accused at his residence. They went outto brunch at the Four Seasons Hotel.

The accused said she picked him up some time between 12:30 and 1:00; his mother said they got tothe Four Seasons close to 2:00. Both said they then went to the Safeway store in the Victoria Square Mall to get flowers which theyplaced on the grave marker of Mr. Longman’s grandmother. They then spent a few hours at Ms. Puckoski’s residence. At some point Mr. Longman’s sister came over with her children for a visit. The accused said she arrived some time between 4:30 and 5:30; his mothersaid they came around 5:30 and stayed until 6:30.

The accused testified that his mother drove him home some time between 7:00 and8:00 p.m.; his mother said it was between 7:30 and 8:00 p.m. The accused said that he was not driving a blue Cavalier motor vehicle inthe area of Pasqua Gate at 5:00 p.m., the time of the alleged offence. Ms. Puckoski said that he did not leave her company at any timeduring the day between the times that she picked him up at his residence for brunch and when she dropped him off in the evening. [9] There were two significant differences in the evidence of Mr. Longman and his mother.

First, the accused testified that before he disclosed the alibi to his lawyer he wanted to talk to his mother about it to be sure she had noobjection to her name being provided as his alibi witness. He said he played telephone tag with her for awhile as she works long hoursand he had some difficulties using the phone at the jail. He also said that the call he had with her eventually was the only call he hadwith her in all the time he had been in custody.

He denied that they discussed any of the details about how they spent the day, but hesaid that she immediately recognized that the date in question was Mother’s Day and knew that they had spent it together. He also saidthat she had made a smart remark about him “having friends” when he mentioned that he thought the investigating officer was the sameone that he had dealt with in the past. [10] Ms. Puckoski testified that the first she heard about the possibility of being an alibi witness was when her son’s lawyer contacted her. She denied having had any telephone conversation about it with the accused.

Shesaid she had only spoken with the accused once while he was in custody, and that was a couple of months ago. [11] A less significant, but relevant difference in their evidence concerned the flowers purchased at the Safeway store. The accused said they were red roses. His mother said she “usually” got red roses, but on this occasionnone were available, so the bouquet she purchased contained a variety of different coloured flowers.

ANALYSIS [12] The Supreme Court of Canada and the Saskatchewan Court of Appeal have set out guidelines for triers of fact to assist them when they are called upon to decide a case where there are differing versions presented by theCrown and the accused. First, there was the Supreme Court decision in R v W.D., [1991] SCR 742 [W.D.]. The Saskatchewan Court ofAppeal explained that decision in R v Klemenz, 2015 SKCA 89 [Klemenz], concluding that there are two situations where the trier of factmust acquit.

First, if they believe the accused, and second, even if they do not believe the accused, if they have a reasonable doubt abouthis guilt based on all the evidence as a whole. [13] The appeal in Klemenz alleged an error in law by the lower court in failing to instruct a jury on all of the four questions set out by Justice Tallis in the Saskatchewan Court of Appeal decision in R v McKenzie (1996), (SK CA), 141 Sask R 221 [McKenzie].

The questions set out in that decision included, in addition to the two mentioned inKlemenz, that if, after a careful consideration of the evidence you are unable to decide whom to believe, you must acquit, and further, ifyou do not believe the evidence of the accused, but you are left in a reasonable doubt by it, you must acquit. Those two possibilities areincluded in the two principles set out in Klemenz.

It is important that triers of fact remind themselves that in some cases it may not bepossible to decide whom to believe and also to remember that just because you disbelieve an accused person’s evidence, it does not meanthat a verdict of guilty must follow. It is necessary to consider all the evidence to determine if guilt has been proven beyond a reasonabledoubt. With these principles in mind, I will now review the evidence and the applicable law.

ISSUES (

a) Has the Crown proved beyond a reasonable doubt that it was the accused driving the vehicle on the date in question? Eyewitness Identification Evidence [ 14 ] Cst. Simons purported to identify the accused from a brief, although I would not characterize it as a “fleeting”, view that he had of the driver’s profile while the police vehicle was beside the Cavalier. The law is clear that triers of fact must be very careful to ensure that eyewitness evidence is both credible and reliable before accepting it, particularly when it is the only evidence linking the accused to the offence in question.

One of the dangers in cases involving eyewitnesses evidence is that the witnesses appear to be credible witnesses, whose evidence should then be accepted. Most eyewitnesses are honest witnesses who truly believe they are correctly identifying the person. Because they honestly believe the evidence they are giving is true, they are very persuasive witnesses. However, an honest witness can be mistaken. [ 15 ] The Saskatchewan Court of Appeal in R v Bigsky , 2006 SKCA 145 [ Bigsky ] provided significant guidance to lower courts regarding how to properly assess eyewitness identification evidence.

The length and quality of the opportunity to observe the accused is important, as well as the fact that the witness knows the accused from previous dealings. In the present case, Cst. Simons was directly beside and parallel to the driver of the suspect vehicle for about five seconds, in bright sunshine, when there was no interference with his view. [ 16 ] Cst. Simons has had “numerous” dealings with the accused. He described the accused’s haircut as being somewhat distinctive and stated that he has had the same style for quite some time.

The accused also has a tattoo of the word “Sugar” on the right side of his neck. Cst. Simons testified that he noticed this tattoo on the driver when he was beside the Cavalier. When the accused testified he confirmed that he has had previous dealings with Cst. Simons, and that Cst. Simons would be in a position to know him and be able to identify him. [ 17 ] If I have interpreted defence counsel’s position correctly, he does not dispute that Cst. Simons would be able, due to previous dealings, to identify the accused, even with only a brief opportunity to look at him.

However, he elicited the evidence that the driver of the Cavalier may have been wearing sunglasses which would impair Cst. Simons’ ability to identify him somewhat and argued that Cst. Simons was pre-disposed, because of bias, to incorrectly identify a driver as the accused given their previous encounters of a similar nature. [ 18 ] Cst. Simons clearly believed that the driver of the Cavalier was the accused. He said so immediately, but more importantly, he predicted accurately what the person would do, if he were Mr. Longman. While I would have been suspicious if Cst.

Simons had delayed stating the driver was Mr. Longman until after the driver had accelerated away, in keeping with his “MO”, here the statement was made immediately upon Cst. Simons viewing the driver in the vehicle next to them. In all the circumstances, given the previous knowledge Cst. Simons had of the accused, the accused’s distinctive tattoo on his neck and his pattern of offending, I find Cst. Simons’ evidence to be both credible and reliable. Alibi Evidence [ 19 ] As mentioned above, the date of the alleged offence in this case is May 8, 2016, which was Mother’s Day, that year.

The charge was laid on June 7, 2016, but the accused was not immediately arrested on the charge. His

first appearance following his arrest was September 30, 2016. By letter dated March 6, 2017 defence counsel advised the Crown that the accused had an alibi witness, his mother, Ms. Linda Puckoski. Counsel provided a phone number for Ms. Puckoski and invited the Crown to have the police interview her prior to the trial. The letter did not contain a

summary of the alibi evidence. March 6, 2017 would have been almost exactly one week prior to the date scheduled for the trial. [ 20 ] At the outset of the trial, the Crown indicated that they had been advised at a late date that the accused had an alibi but that they did not intend to interview the proposed alibi witness or have the police commence any further investigation. Instead they took the position that the Court could and should draw an adverse inference from the fact that the disclosure was late, and give the alibi evidence little weight.

The Crown indicated that in part, they were taking this position in recognition of the ruling by the Supreme Court of Canada in R v Jordan, 2016 SCC 27 , [2016] 1 SCR 631 concerning trial delay. They felt that the defence should not be able to disclose an alibi so close to the trial date that the date would have to be vacated in order for the Cown to investigate it, thus placing the case in possible jeopardy of being dismissed for unreasonable delay.

There is no doubt but that a late disclosure of an alibi can seriously impair the ability of the Crown to properly investigate the evidence, as well as potentially cause delay if a trial has to be adjourned. [ 21 ] Defence counsel submitted that there was a valid reason for the delay, and that they had offered the Crown an adjournment of the trial if necessary, so the Court should not penalize the accused by any adverse inference. [ 22 ] Mr. Longman did provide what I consider to be a very reasonable explanation for the lateness of the disclosure of his alibi.

He said that he didn’t realize it was Mother’s Day until recently when he was talking to his girlfriend about the upcoming trial and had occasion to look at a calendar. While he wouldn’t be able to say with certainty what he did on any other day, he was able to say what he did on Mother’s Day.

I don’t find anything suspicious in the lateness of the disclosure, given that explanation, so I would not consider it fair or appropriate to apply any adverse inference or reduction in weight to the alibi evidence due to the late disclosure. [ 23 ] Some witnesses have better memories or observation skills than others, and an honest witness can make a mistake, so a trier of fact must be careful not to label a witness as dishonest, simply because they provide evidence which cannot be correct. However, a deliberate lie is a different matter. In my view, it is clear that Ms.

Puckoski lied about not talking to her son on the telephone about the alibi. It was too close in time to the trial to have been forgotten, particularly when it appears that was the only phone call she has had with her son since he has been incarcerated. Defence counsel argued that perhaps the accused confused the telephone call he had with his girlfriend as being one he had with his mother, suggesting that the conflict could be attributed to the accused making a mistake, rather than Ms. Puckoski giving unreliable evidence.

However, the accused’s testimony about the content of the phone call was too detailed, and the event too recent in time for that to be the case, in my view. While it might be possible for the accused to have lied about the phone call, I cannot see any reason why he would do so. [ 24 ] With respect to the flowers, the fact Ms.

Puckoski said she “usually” bought red roses, but did not on this occasion, leads me to conclude that the accused and his mother concocted the alibi relying on events which had actually occurred at some time in the past, perhaps even on the date of the offence, but the type of flowers purchased was one of the details they neglected to discuss in advance of the trial. However, I do not believe them when they say that they were together at the time of the offence. [ 25 ] In the result, having considered and compared the evidence provided by the accused and his mother, I do not believe the alibi evidence.

Further, when I consider it as compared to the evidence of Cst. Simons, it does not raise a reasonable doubt in my mind about whether the accused was the driver of the Cavalier vehicle Csts. Simon and Bowes dealt with on the date in question. [ 26 ] Having come to the conclusion that the accused was the driver of the blue Cavalier that Csts. Simons and Bowes attempted to stop on the date in question, the accused must be found guilty of the offence of driving while disqualified.

The original driving prohibition imposed on December 13, 2013, for five years was filed by the Crown, and defence counsel conceded that the accused should be convicted of this offence if I found him to have been the driver of the Cavalier vehicle on

May 8, 2016. (

b) If the answer to (

a) is yes, has the Crown proved beyond a reasonable doubt that the accused was “being pursued ” by the police, which is an essential element of the charge of evading police contrary to s. 249.1(1) of the Criminal Code ? [ 27 ]

Section 249.1(1) of the Criminal Code creates the offence known as evading police as follows: Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances. [ 28 ] In an unusual turn of events, defence counsel advised me in closing argument that he was tendering a previous decision involving the same accused, when he was charged with the same offences, and acquitted on the evading police charge.

In R v Longman, 2013 SKPC 201 , my brother Judge M. Hinds acquitted Mr. Longman on the basis that he was not “being pursued” by a peace officer. In that case the accused’s behaviour was identical to what he did in the present case. However, the police behaviour was different. [ 29 ] In the earlier case, when Mr. Longman accelerated away from the scene after both vehicles stopped, the police stayed where they were, adopting their “no pursuit” policy.

In fact, the case law relating to this offence has been focussed primarily on the police behaviour as related to the element of “pursuit”, rather than the accused person’s behaviour. In most cases it is abundantly clear that the accused did evade the police by driving away from them at some speed with the police exercising restraint by not engaging in a high speed chase that could endanger the public, and in the past, has done so. [ 30 ] Judge Hinds acquitted Mr.

Longman of the offence of evading police after applying a definition of “pursuit” from the Canadian Oxford Dictionary of “to follow with the intent to overtake” which had been accepted in two earlier decisions - R v Kagayalingam , 2006 ONCJ 402 [ Kagayalingam ] and R.Z. v Her Majesty the Queen, 2008 SKQB 313 [ R.Z .]. [ 31 ] In the Kagayalingam decision, the accused was aware that the police were following him and wanted him to pull over to stop, but he continued to travel at about 40 km/hr in an area with a speed limit of 60 km/hr for 45 seconds or so before he did pull over and stop.

The trial judge noted that it appeared the police officer did not determine that a “pursuit” was necessary; he stopped his police car at a red light before continuing to follow the offender. Applying the dictionary definition of “to follow with the intent to overtake”, the trial judge decided that what happened was not a “pursuit” which he felt was not the same thing as an “active following”, the description used by the police officer who testified in that case.

In the result, he had a reasonable doubt about whether the officers were engaged in a pursuit in this case and acquitted the accused on the charge of evading the police. [ 32 ] In R.Z. the facts were quite different. Justice Ryan-Froslie, as she then was, provides the circumstances surrounding the offence at paragraph 31 of her decision. The police officer observed the accused’s vehicle turn erratically into the street in front of him. He noticed that it was operating slowly and weaved in its lane. The officer did a U-turn and followed the vehicle with the intention of stopping him to “check sobriety”.

The officer activated his lights, though not his siren. He testified that he then attempted to “overtake” the accused who was travelling at speeds in excess of 110 km/hr in a 40 km/hr residential area, albeit for a short time of about 20 seconds. At that point the vehicle stopped and all the occupants exited the vehicle and fled. [ 33 ] Defence counsel had argued that the events were too short in time and distance to amount to a “pursuit”. Justice Ryan-Froslie did accept the definition of “pursuit” from the dictionary as “following with the intent to overtake”,

which she found was applicable to the circumstances of the case and accordingly upheld the conviction entered by the lower court. While the officer did state that he attempted to “overtake” the accused, it was clear that he did not attempt to pass it. Subsequent decisions have addressed the question of whether the term “overtake” includes a requirement that the police also operate their vehicle at a high speed in order for it to qualify as a “pursuit”. [ 34 ] In R v Isaac, 2015 SKQB 46 [ Isaac ], the fact situation was similar to the one in the present case.

The police behaviour in response to the actions of the accused, who did not stop when signalled to do so, was to follow for about three blocks with their emergency lights on, but at a speed close to the speed limit, which was far less than the speed at which the accused was travelling. The argument was presented that this did not amount to “following with intent to overtake” as set out in R.Z. Justice Tholl found that the facts in his case fell within that

interpretation. He concluded that following with the intention of having the accused stop was a “pursuit”and that it would be contrary to the purpose of the

section to require the police to accelerate to the same dangerous speed as the accused. [ 35 ] The Saskatchewan Court of Appeal had occasion in the case of R v Briltz , 2016 SKCA 2 [ Briltz ] to consider the meaning of “pursuit”, and while the facts in this case were different, the

interpretation of the law is the same as in the Isaac decision. In Briltz the accused argued unsuccessfully that the police policy not to pursue high speed chases due to public safety concerns meant that there was no “pursuit” on the facts of his case.

In Briltz there were three separate incidents of the police attempting to stop the accused, each of which involved fact situations where the police followed the accused with their emergency lights on and at a high speed for some distance before discontinuing the chase. [ 36 ] In addressing the meaning of “pursuit” in s. 249.1(1) of the Criminal Code , the Court of Appeal considered whether “overtake” requires an intention to pass the other vehicle.

The evidence of the officers was clearly that what they wanted to do was to catch up to the vehicle and pull it over to see who was driving and obtain driver information. The Court noted that “overtake” can mean two different things; it can mean “to pass” or “to catch up with”. The Court also quoted with approval the decision of the trial judge (my sister Judge Crugnale-Reid) who held that requiring the police to have an intention to pass is illogical given the context and purpose of the provision, which is meant to deter individuals from evading police.

The Court held that a proper definition of pursuit includes following the vehicle with the intention of trying to make it stop. I do not believe the Court’s decision over-rules Justice Tholl’s finding that the police may follow at a reasonable speed and still be found to be “pursuing” within the meaning of s. 249.1(1) .

They still intend to “catch up with” the offender, but rather than increasing their speed they follow with the hope that the offender will reduce his or her speed. [ 37 ] Although the police officers in the case at bar followed the accused at the speed limit and only a short distance with their emergency equipment activated, I am of the view that this is sufficient to fall within the definition of “pursue” accepted by the superior courts of this province, which are binding on me.

While the police had no intention of engaging in a high speed chase with him, and in their terms declined to “pursue”, they were in fact following him with the intention of trying to make him stop, although they knew it was not likely that he would do so. Accordingly, the element of the offence that the accused was “pursued by a peace officer” has been established in this case. [ 38 ] With respect to the meaning of the term “pursue, there is one further issue to consider.

Defence counsel submitted that the law which has developed relating to stare decisis would suggest that although I am not required to follow his decision, I should follow the decision of my brother Judge Hinds and acquit Mr. Longman again on the evading the police charge. Counsel relied on Justice Tholl’s reasons in the Isaac decision where he noted that there is a very high threshold for overturning previous decisions of the same Court, since it does a disservice to litigants and lawyers who are entitled to see the law as reasonably settled and certain.

However, as mentioned earlier, the facts in the two cases are different, therefore the decision of Judge Hinds is distinguishable and this is not a case where my decision would overrule his. [ 39 ] In my view, there is no question but that the accused intended to evade the police. Since the accused did stop briefly, he knew that a police officer wanted him to stop, and having stopped momentarily, he accelerated away in a dangerous fashion thus frustrating the officer’s purpose in stopping him. He has not attempted to provide any reasonable excuse for his behaviour.

In the result, the accused is also guilty of the offence of evading the police, contrary to s. 249.1(1) of the Criminal Code .

Dated at the City of Regina, in the Province of Saskatchewan, this 31 st day of March, 2017. ______________________________________ C. Snell Judge of the Provincial Court of Saskatchewan