R. v. Matthews, 2014 NSPC 84

Provincial Court of Nova Scotia Citation: R. v. Matthews , 2014 NSPC 84 Date: 2014-07-21 Docket: 2637411 2637412 Registry: Amherst Between: Her Majesty the Queen v. William Kenneth Charles Matthews Decision on trial Judge: The Honourable Judge Paul B.

Scovil Heard: May 21, 2014, June 3, 2014 & June 13, 2014, in Amherst, Nova Scotia Oral Decision: Written Decision: July 21, 2014 October 27, 2014 Charges That he on or about the 4 th day of July, 2013 at or near Springhill, Nova Scotia, did while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did in order to evade the peace officer fail without lawful excuse to stop AND FURTHERMORE that he on or about the 4 th day of July, 2013 at or near Springhill, Nova Scotia, did operate a motor vehicle on a street to wit: Church Street in Springhill, Nova Scotia, in a manner that was dangerous to the public, AND FURTHERMORE that he on or about the 4 th day of July, 2013 at or near Church Street, Springhill, Nova Scotia, did unlawfully commit the offence of driving a motor vehicle while his license or privilege of obtaining a license was revoked Counsel: Mr.

Bruce Baxter, for the Crown Mr. Jim O’Neil, for the Defence By the Court: [ 1 ] This is the decision in relation to William Kenneth Matthews. William Kenneth Charles Matthews is charged under Section 249(1) of the Criminal Code with driving a motor vehicle in a manner that was dangerous to the public with regards to all the circumstances including the conditions, the place in which the motor vehicle was being operated and the amount of traffic at the time that might reasonably be expected to be at that place. He also stands charged under

Section 249.1(2) of while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did in order to evade the police officer, fail without lawful excuse to stop his vehicle as soon as was reasonably possible in the circumstances. Finally, he is charged with the provincial Motor Vehicle Act of driving without a valid driver’s license under Section 287(2). [ 2 ] In relation to the facts, Constable Judson Hall was called by the Crown. He is a police officer with the Springhill Police Department who had been seconded to the Cumberland Street Crime Unit.

On July 4, 2013 he was employed in that position along with Constable Munn, both of whom were conducting surveillance of the area of 12 Junction Road in Springhill, Nova Scotia. They had arrived at approximately 5:00 p.m. and were situated at the elementary school across from the residence of 12 Junction Road. Constable Hall was not sure at the time if he was using binoculars to observe the area, but indicated he usually did. He also recalled receiving a call from Constable Vincent that Mr. Matthews was headed their way. He observed the Accused, Mr. Matthews, arrive and go in to 12 Junction Road. Mr.

Matthews later came out, opened the garage and took out a motorcycle. Mr. Matthews was observed by Constable Hall to have blond highlights in his hair and was wearing a black leather jacket. Mr. Matthews brought the motorcycle out of the garage, put on a helmet, started the motorcycle and went down Junction Road towards Main Street. [ 3 ] Constable Hall turned the vehicle around and noted that Constable Maddison who was in another vehicle had activated emergency lights and was trying to stop the motorcycle.

Constable Hall indicated that he had a conversation on the radio with other constables indicating that the Accused was leaving his residence on a motorcycle, as well as indicating his direction of travel. He indicated that it was sunny weather and that they were approximately 50 to 60 feet away. Constable Hall indicated he knew who the Accused was and had contact with him on 25 to 30 prior occasions. Constable Hall also knew James Trimm whose appearance he said was very different from Mr. Matthews.

He indicated that these observations were made around 8:00 p.m. and under cross-examination, Constable Hall indicated where they were when they were parked next to the elementary school. He was examined extensively on the distance relating to where they were parked. Constable Hall testified that Constable Vincent as well had drove by and over the radio confirmed that he too had seen Mr. Matthews. [ 4 ] Constable Jarrett Munn testified that he too was an RCMP officer with five years’ experience and was a member of the Cumberland Integrated Street Crime Unit.

On the 4 th of July, 2013 he was conducting surveillance in the Springhill area of Nova Scotia. At around 7:30 p.m. he and Constable Hall had arrived to start surveillance. They set up on Junction Road in the Springhill area across from 12 Junction Road where he indicated he felt Mr. Matthews had resided. They were set up in a parking lot adjacent to the Springhill Elementary School. [ 5 ] Constable Munn was in the driver’s position while the passenger seat was occupied by Constable Hall. The officer indicated on Exhibit 1 exactly where he felt they were parked.

They were faced towards the Amherst direction and had a clear view of the residence of Mr. Matthews. He indicated he did not use binoculars, but had good vision without them. He gave his estimations as to the distance, but indicated they were estimations only. He saw an individual exit the shed located on the Matthews’ property and that individual took off his helmet. Constable Munn was able to observe that it was the Accused, “Sonny” as he is called, Matthews. He then pointed out the Accused to Constable Hall. He noted that he had had contact with Mr.

Matthews only once before, but had seen a number of photos of him and recognized him. Constable Munn indicated that he saw Mr. Matthews in the door and that he had backed the motorcycle out of the shed while talking to another male who was with him. [ 6 ] Mr. Matthews put a helmet on to get on the motorcycle and then left. Constable Munn then notified the other officers that the Accused was on the move. This was done over police radio. He could not identify the other male who at the time was in the shed. In cross-examination, he indicated he had a clear view of Junction Road.

Also under cross-examination, Constable Munn testified that he had only dealt with Mr. Matthew one time prior, but had seen him in the community a number of times. Constable Munn did not recall hearing from Constable Vincent indicating that Mr. Matthews was on his way. [ 7 ] Constable Vincent has been with the RCMP some eight years and was a member on July 4, 2013. He was involved in the surveillance of Mr. Matthews on the date in question.

Constable Vincent was on Victoria Street in Springhill on an unrelated matter and was sitting there in his vehicle when he observed the Accused wearing a black leather jacket walk by. He recognized the individual as the Accused and as the Accused got close he noticed a limp or a stumble. The Accused had bright blond highlights in his hair and he was 100 percent sure it was Mr. Matthews as he had dealt with him on a number of other occasions. [ 8 ] At that time, Constable Vincent let other members in the area know that Mr.

Matthews was in the area and not far from Junction Road where he knew the other surveillance was taking place. Constable Vincent testified he was curious as to whether the Accused was impaired when he walked by him. After learning from Constable Hall via radio that the Accused had come out of the shed, Constable Vincent did a drive-by. As he drove by, he recognized Mr. Matthews who was seated on the motorcycle. Approximately 30 seconds later, Constable Hall said that Mr. Matthews had started the bike and had left. Via radio, Constables Maddison and Galloway advised that the motorcycle had drove by Mr.

Matthews’ residence, drove up Church Street and at one point had accelerated away from their vehicle at a high rate of speed. They reported to Constable Vincent that they had obtained speeds of up to 100 kilometres an hour when they called off the chase. The speed limit in the area is 50 kilometres per hour. Constable Vincent then proceeded to try to search the area himself, but was unable to locate the Accused or the bike in question. [ 9 ] Constable Galloway is a member of the Amherst Police Department and had as well been seconded to the Integrated Street Crime Unit on the date in question.

He was a passenger in a motor vehicle with Constable Maddison. They were parked on Main Street in the Springhill area of Nova Scotia in front of a church there. They had heard through the radio that Mr. Matthews had got on the motorcycle and was driving to Main Street. They were able to observe the motorcycle going towards Main Street. They saw the motorcycle come to a stop at a stop sign. There was only one motorcycle in the area. The motorcycle crossed Main Street and had gone up another side road to a high school when they decided as the officer said to “light him up”.

They did this using their emergency equipment after hearing from other officers that the Accused had no driver’s license. They then saw the Accused turn and as Constable Galloway said, “put the pedal to the metal” and take off. There was a high speed chase that went up to 100 kilometres an hour before the officers decided to call off the pursuit. Constable Galloway could only identify the motorcycle with a helmeted driver and could not identify who the driver was. [ 10 ] Constable Maddison, another member of the Street Crime Unit on that date, was with Constable Galloway conducting surveillance.

He said they were located on the Main Street area in Springhill on the corner of Main and Junction Road. They were situated in front of the United Church. Through radio conversation they heard that Mr. Matthews was leaving his residence on a motorcycle, heading towards Main Street and that he was not in possession of a license. They were able to observe as the motorcycle went by. It was the only motorcycle in the area. They followed the bike up Main Street.

They noticed the person on the motorcycle look back and at that point they turned on the emergency equipment and highly accelerated to a high rate of speed towards the end of Main Street.

As he was the officer that was driving the vehicle, he was not able to observe the speed that they were going exactly because of the high rate, but he felt it was at least close to 100 kilometers per hour. [ 11 ] As well there was some evidence from Acting Deputy Chief Ken Matthews of the Springhill Police Department who gave evidence taken after the fact as to distances in the area of 12 Junction Road and from 12 Junction Road to the Elementary School. [ 12 ] On behalf of the Defence, James Trimm testified that on July 4, 2013 he was at his uncle’s residence at Junction Road in Springhill, Nova Scotia.

He had arrived after supper. He indicated that he has a child with Tara Matthews who lives next door to where the events occurred. Mr. Trimm indicated that when he arrived he was asked to go buy chewing tobacco for one of the residents. He then asked Sonny Matthews, the Accused, if he could borrow his bike to get the tobacco. Using the motorbike, he went up Junction Road, took a shortcut on Elm Street, went south on Elm Street to Black Street, took a right onto Church Street, took a left over the top of Church Street over to McFarlane, and then proceeded over a field. [ 13 ] On Church Street, Mr.

Trimm said he took a shoulder check and noticed the SUV driven by the police. They did put lights on, but he didn’t pull over. He said he was wearing a black jacket, jeans and a full-faced motorcycle helmet. He turned to Junction Road basically the same way he came. Under cross-examination, he indicated that he now has a beard, but he did not in July. He was shown Exhibits 12 to 17 and all of them show him as continuously throughout the periods that the Exhibits covered as having a facial appearance almost identical in each picture showing a beard and close-cropped hair.

These included pictures from the 2 nd of March, 2013 and none of them showed him as clean-shaven or with blond highlights in his hair. [ 14 ] In relation to this, under cross-examination he indicated he took Mr. Matthews’ motorcycle and pulled out between 7:00 and 7:30 p.m. It was fairly light out and sunny. He agreed after being shown convictions, that he did not have a lot of respect for the justice system. He also indicated that during the period he was being followed by the police, his speeds only got up to 70 kilometres per hour. He indicated the police vehicle made no attempt to catch up with him.

He indicated that he had walked to Sonny Matthews’ house around 5:00 o’clock. He didn’t see any police cars when he arrived and had not mentioned to anyone that the police had followed him with their lights on. He indicated he had driven around for approximately one hour. He testified that when he got back to the residence, he had gone to the liquor store and had walked there. He indicated he put the helmet on just outside when he got on the motorcycle and he had gone out of the house carrying the helmet for the bike. He wasn’t sure if Mr. Matthews was there at the time that he arrived. He’s not sure how long Mr.

Matthews owned the motorbike. He indicated that the police cruiser had lights on, but he did not hear any sirens. [ 15 ] Kenneth Matthews testified that he was at the house. He guessed, but couldn’t remember exactly when he arrived. He indicated that he did not think it was a big deal and therefore did not remember. He was not sure when Mr. Trimm arrived. The motorcycle was in the barn. Mr. Matthews said he had brought it out to change the oil. He indicated that at some point he hurt and damaged his ACL ligament and was unable to drive

the motorcycle. He indicated his leg was too weak to start the bike with a starter. He also indicated he knew his leg was too weak to hold the motorcycle up if he had stopped it in the intersections. He indicated that one ofthe residents had asked him to go for chewing tobacco, but he could not because he was not able to drive.[16] He indicated he was on the verge of getting his license back and that was very important to him. He indicated Mr. Trimm drove the motorcycle at supper time. Mr. Matthews advised that Mr. Trimm did have acriminal record and that he was serving time now.

He described himself as being approximately 170 pounds and that he had blond highlights in his hair at the time that this occurred. On cross-examination, he indicated hehad to walk to where he had arrived and that he knew that he had been observed by the police and had walked by Constable Vincent. He indicated that his father had purchased the bike from him. The evidence appears,however, that Mr. Matthews was the main driver of the motorbike. In cross-examination, he indicated it was only a few days until he got his license back and that he was anxiously getting the bike ready for that.

He waschanging the oil in the shed and took it out to crank it up to check fluid levels. He indicated that another person named Jimmy had started it and that he had checked the fluid levels.[17] He’s not sure how Mr. Trimm got involved in relation to the chewing tobacco, but it ended up that that’s what took place. He testified that the motorcycle as far as he knew had no insurance on it at the time. Theregistration was off of it as well. He was not sure what helmet Mr. Trimm had used, what Mr. Trimm was wearing when he had left the residence, or how long he was gone. Mr.

Trimm did not advise him about beingfollowed by the police when he returned. Mr. Matthews indicated that he had told the police that the motorcycle was not his because it was transferred to his father. Mr. Matthews was cross-examined on his record whichindicated several charges for possession of stolen property, obstruction of justice and a robbery charge. In cross-examination, he agreed that at the time of this offence he had blond highlights in his hair and did not have abeard.

He also confirmed that he had seen the first officer, Constable Vincent, when he had walked by him and that Constable Vincent would know who he was.[18] In relation to the facts before me, it was clear that whoever was driving the motorcycle that day followed by the police, did so in a manner that was very dangerous to the public taking into account the residentialareas where the speeds were reached up to 100 kilometres an hour and the other surrounding circumstances shown by the evidence.

As well, it was clear that whoever was driving the motorcycle realized that the policewere behind him and that he operated the motor vehicle in a manner that was clearly designed to evade the police who were trying to stop him. It was also clear on all the evidence before me that Mr. Matthews did nothold a valid driver’s license at the time the events had took place.[19] In relation to this, I must be instructed by the Supreme Court of Canada in the case of R v.

W.(D.) (SCC), [1991] 1 S.C.R. 742 which sets out one of the most important touchstones for a trialjudge in determining whether or not there are reasonable doubts in relation to the evidence before him or her and further on questions of credibility.[20] In R v. W.(D.) it sets out that should I believe the testimony of Mr. Matthews (i.e. that he was unable to drive the motorcycle in question and could not hold it up, that he did not drive the motorcycle in relation tothe incident that is before the Court, and that it was Mr.

Trimm who the officers had observed driving the motorcycle in question) I must therefore acquit Mr. Matthews. Even if I reject his evidence, but his evidence stillprovides a reasonable doubt, then again I must acquit the Accused. Even if I do not accept the evidence of Mr. Matthews and it does not raise a reasonable doubt, but I believe the evidence of Mr. Trimm, then that in turnwould require me to acquit the Accused. Again, even if I reject Mr. Trimm’s evidence, but it raises a reasonable doubt, then that in turn would lead to an acquittal of the Accused.

Even if I reject the entirety of the Defenceevidence and that evidence does not raise any reasonable doubt, I must still look at the entirety of the evidence before me and determine if the entire evidence which I accept has a reasonable doubt and if there is a doubt, Imust acquit.[21] I must also instruct myself in relation to the concept of reasonable doubt which is laid out in R v. Lifchus (SCC), [1997] S.C.J. No. 77 from the Supreme Court of Canada.

I’ve considered thatcase and the instructions it contains from the Supreme Court of Canada in relation to my decision in this matter.[22] The question of determination of credibility was considered by Justice Cacchione of the Nova Scotia Supreme Court in R. v. Logan [1999] N.S.J. No. 473 at paragraph 17 where Justice Cacchione stated that thetest for determining credibility was set out in the case of Faryna v.

Chorny (BC CA), [1952] 2 D.L.R. 354 at 357 where Justice O’Halloran speaking from the British Columbia Court of Appeal stated:The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The testmust reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must beits harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions.[23] As stated above as well, I must also keep in mind that the Crown must prove this case beyond any reasonable doubt.[24] In relation to Mr. Matthews’ evidence, I do not accept his testimony. His explanations as to the original investigation that the bike was not his was not borne out by the facts.

Whether registration may have been insomeone else’s name, he clearly indicated in his evidence that he was preparing to get the bike ready for his renewal of his license and his ability to drive. He testified that due to his leg injuries, he would have been unableto start the motorcycle or indeed keep it righted should he come to a stop as he would not be able to hold up the weight of the motorbike. Yet, he testified that within several days he was going to be able to get his licenseback and was getting the motorcycle ready for that opportunity.

He clearly had control over the bike and was clearly the owner of the bike. His demeanor and answers to questions were ones that that did not allow forreliability to the extent of raising any reasonable doubt. I also take into account the fact that he had a record for possession of stolen goods, obstruction of justice and robbery; all of which are offences which can relate tothe credibility of an individual. Accordingly, I reject his evidence. It does not raise a reasonable doubt.[25] The evidence of Mr. Trimm was highly unreliable. The Exhibits tendered by the Crown showing that Mr.

Trimm’s hair and facial hair were unchanged from November, 2012 to March, 2014 proves that any claimthat Mr. Trimm had shaved his beard and highlighted his hair on the date in question would be totally incredible. Further, Mr. Trimm’s evidence that while on the motorcycle he did not exceed the speed of 70 kilometresan hour, does not accord with the evidence of the police officers which I accept. Mr. Trimm readily admitted that he had a lack of respect for the justice system and as well he too had a criminal record for crimes ofdishonesty. I reject his evidence.

It does not raise a reasonable doubt.[26] In relation to this matter, I still must instruct myself as it is essential to the Crown’s case that eyewitness identity of the Accused must be accepted to convict the Accused. I must also be cognizant of the frailtiesof eyewitness evidence. It has been recognized that “the assessment of the probative force of eyewitness evidence does not often turn on credibility assessments, but rather on considerations of the totality of thecircumstances pertinent to that identification” (See R. v. Biddle (ON CA), [1993] O.J.

No. 1833).[27] This does not mean that a Court cannot accept eyewitness evidence relating to identification of an Accused.

What the trier must focus on are a number of issues which are non-exhaustive and include suchconcerns as:• the time lapse between the event and identification;• prior knowledge of the person identifying the Accused or the Accused themselves;• the opportunity of a witness in the capacity of the witness to observe the Accused and conditions surrounding that observation;• the presence of any distinctive features which would assist in the identification of an individual;• the duration of the observation;• the emotional state of the individuals making the observation including stress or presence of violence; and• the opportunity for collusion either intentional or unintentional. [28] In this matter, we have the following facts relating to the identification of the Accused as being the one who got on the motorcycle and sped away.

Constable Munn had a good visual on the scene on JunctionDrive in Springhill. He saw an individual coming from the direction of Amherst pull on to 12 Junction Road. The person parked the motorcycle in a shed on the property and Constable Munn observed what he believed tobe the Accused taking his helmet off after getting off the bike. The Accused had noticeable highlights in his hair and Constable Munn was able to recognize that individual as the Accused. He had only one prior person-to-person contact with the Accused, but he had seen his image in photos.

Constable Munn was able to see the Accused after entering the residence and exiting the same after a short period of time, go back to the motorcycleand take it out of the shed. The Accused put on a helmet and left on the motorcycle. At that time, Constable Munn had notified the others that the Accused was on the scene.[29] Constable Hall was able to observe Mr. Matthews go into 12 Junction Road and then shortly come out and open the garage. Mr. Matthews was observed by him taking out the motorcycle. Constable Hall notedthat there were blond highlights in the hair of Mr.

Matthews and that he was wearing a black leather jacket. After taking out the motorcycle, Mr. Matthews put on a helmet, started the motorcycle and went down JunctionRoad towards Main Street. Constable Hall testified that he knew who the Accused was and had contact with him on a number of occasions in the past. He also advised that he knew James Trimm from his appearancewhich was very different from Mr. Matthews.

Constable Hall was certain that the individual he saw on the motorcycle was in fact the Accused.[30] Constable Vincent was on an altogether different investigation and was parked on Victoria Street in Springhill. He observed the Accused wearing a black leather jacket. He noticed the Accused had a limp andnoticed that the Accused had bright blond highlights in his hair. He was very familiar with Mr. Matthews and 100 percent sure that that individual was in fact the Accused. Constable Vincent was somewhat concerned thatthe Accused might be impaired. He spoke on the radio and advised that Mr.

Matthews was going towards the house. Constable Hall also advised that the Accused had come out of the shed and as a result, ConstableVincent decided to drive by 12 Junction Road. As he drove by, he recognized the Accused who was seated on a motorcycle. He was later able to observe Constables Maddison and Galloway behind the same motorcycle.The constables had their police cruiser lights engaged and the siren going. The driver of the motorbike turned and looked around and then accelerated away from the vehicle driven by the two officers. And further, thatofficer noted on July 17th when he arrested Mr.

Matthews that the highlights were still in Mr. Matthews’ hair.[31] While Constables Maddison and Galloway did not observe the Accused without a helmet on, they certainly followed the same motorcycle that was seen by the other officers. Additionally, they noted that theother officers had indicated that they observed the Accused leaving his residence on the motorbike heading towards Main Street and that the Accused had no license to drive.[32] It should also be remembered that Mr.

Matthews himself indicated that he was limping on the day in question, that he had blond highlights in his hair and that he was at the locations identified by the policeofficers who were able to observe him on that day.[33] Combining all of the observations from above shows that given: (1) the prior familiarity of the officers with the Accused; (2) the officers ability to observe from the locations that they were in;(3) the distinctive features unique to the Accused on that day (ie. Mr.

Matthews having blond highlights in his hair, together with a limp); and(4) the fact that the police officers were there specifically to observe their surroundingsall lends a great deal of credence to the identification of the Accused as the driver of the motorcycle and that this identification is highly reliable and I, therefore, find as a fact that the Accused was the driver of themotorcycle.[34] In relation to this, taking all that into account there is proof beyond any reasonable doubt of the elements of the offences before this Court. I, therefore, convict the Accused of each of the charges before me.

Paul B. Scovil, JPC.