Court File and Parties

Court File No.: Guelph 2525-12 Date: 2014-01-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Edward Justin McMullen

Before: Justice G. F. Hearn

Heard: December 4, 2013

Reasons for Judgment Released: January 8, 2014

Counsel:

• S. Hamilton, counsel for the Crown
• J. Pellizzari, counsel for the accused Edward Justin McMullen

HEARN J.:

BACKGROUND

[1] The accused came before the court on December 4, 2013 and at that time entered pleas of not guilty to three counts arising out of events which occurred in the City of Guelph on December 13, 2012. The counts involve allegations of dangerous driving, flight from police and an assault on Cst. McArthur, the investigating police officer with respect to those matters.

[2] The trial commenced on December 4, 2013. Evidence was completed and submissions were made. Following submissions the court dismissed the charge of assault and brief reasons were given at that time, including the position of the Crown that there was no reasonable prospect of conviction on that particular count.

[3] Judgment was reserved on the remaining counts and the matter has ultimately been adjourned to today's date.

EVIDENCE OF THE CROWN

Evidence of Victoria Saliba

[4] Ms. Saliba at the relevant time was employed at a hair salon on Macdonell Street in the City of Guelph near its intersection with Norfolk Street. She was outside of her place of business around noon hour on December 13, 2012 and at that time she saw a red pickup truck stopped for a red light with a police cruiser with lights on behind this vehicle. She observed a police officer approach the vehicle, instruct the driver to turn the vehicle off and roll the window of the vehicle down. She stated the officer made the demand loudly and in a firm fashion and again, when the window was not rolled down, repeat the demand. At that time she observed the window of the vehicle to be rolled down and the officer lean into the vehicle.

[5] She next observed the truck accelerate to the right, mount a curb and proceed in a northerly direction down Norfolk Street. She described the actions of the vehicle mounting the curb as being accomplished within a rapid acceleration of the vehicle.

[6] The witness was adamant she had observed the window of the truck ultimately being rolled down and the officer leaning into the vehicle. She heard nothing being said by the driver. When shown photographs, which are now marked as exhibits in this proceeding, showing the vehicle being stopped and the officer producing a gun, the witness acknowledged she had not seen the officer in possession of a gun drawn in the manner shown in the pictures filed. She also was not aware the cruiser she described was actually parked beside the vehicle as opposed to behind it.

[7] This witness's evidence is inconsistent with other Crown evidence, as well as defence evidence, as to what occurred at that particular location. It is clear the witness did not observe the gun that was actually drawn, nor did she recall initially, until put to her in cross-examination, that the cruiser was beside the vehicle as opposed to behind it. In fairness, the witness was attempting to recall events which had taken place approximately a year before the trial and she candidly acknowledged her errors in both the description of where the police cruiser was initially and her apparent failure to see the gun drawn. She was still, however, adamant that the window on the truck had ultimately been rolled down and the officer had leaned in the window prior to it rapidly leaving the scene.

Evidence of Corey McArthur

[8] Constable McArthur is a police officer with the City of Guelph Police Services and has been since September of 2001. In-chief he testified that on December 13, 2012 at approximately 1:22 p.m. he was operating on his own a fully marked SUV police vehicle northbound on Wyndham Street in Guelph in the downtown area. He had stopped for a red light approximately three car lengths back from an intersection and when the light turned green the officer heard a "squealing of tires" and observed a red pickup truck with "smoke coming off the back tires" proceeding through the intersection in the opposite direction towards the downtown area.

[9] The officer stated the driver of the vehicle appeared to "look over at me" and he believed that they made eye contact. He conducted a u-turn with the cruiser and was able to "catch up" behind the truck which had now stopped for a red signal light on Wyndham Street. Again, the officer, now behind the truck testified he observed the driver of the truck, ultimately found to be the accused, looking in his side rearview mirror. He believed again that the individual had made eye contact with him.

[10] The light turned green and the truck again, according to the officer, squealed its tires and proceeded through the intersection. At that point the officer activated the emergency lights on the cruiser to pull the vehicle over with the intention to speak to the driver about the squealing of the tires.

[11] The truck did not come to an immediate stop but slowed down. The two vehicles travelled for approximately 75 to 100 metres when the truck eventually, according to the officer, came to a stop at the intersection of Wyndham Street and Macdonell Street.

[12] The officer indicated at that point he had activated the roof and grille lights on the cruiser and as well had activated the sirens and the air horn.

[13] He described the vehicle and pedestrian traffic at the time as being moderate, but went on to state at that time of day it is usually busy with both forms of traffic in the downtown area.

[14] The officer testified after the quick acceleration at the initial set of lights the vehicle was then "well under the speed limit". He testified as well that he felt the vehicle "more or less coasted" with an estimated speed of 30 to 35 kilometres an hour.

[15] When the vehicle came to a stop on Wyndham Street approximately ten to 15 metres from its intersection with Macdonell Street, he stopped his cruiser behind the vehicle some 15 to 20 feet away. He stated when he activated his emergency lights the vehicle had slowed down, coasted to an eventual stop and the truck then braked and the driver "put it in Park".

[16] The officer exited his cruiser, walked towards the driver's side of the pickup truck and stated again that he made eye contact with the driver through the sideview mirror of the truck. When he got within ten feet of the truck, the truck started to move forward slowly. The officer then "ran up to the truck", hit the back tailgate and yelled "Police, stop".

[17] The officer testified as soon as he yelled that the truck again squealed its tires, accelerated at a high rate of speed and made a right hand turn onto Macdonell Street. The officer immediately ran back to his cruiser, radioed dispatch, got into his vehicle with the lights still activated, made the right turn onto Macdonell and followed the truck.

[18] The truck approached the intersection of Macdonell and Norfolk Streets and was in the left hand turn lane behind other vehicles stopped for another red traffic signal. The officer testified at the time the right turn lane at that particular intersection, which is a T-intersection, was congested with other vehicles. He also testified there were two or three vehicles in front of the pickup truck in the left hand turn lane waiting for the light to change.

[19] The officer came up from behind, positioned his cruiser in the opposite lane of traffic beside or near the front of the truck attempting to block it. He exited his cruiser, went around the front of the cruiser, watching the driver who he then described as immediately ducking down to his right and appearing to be "going under the seat or the floor boards".

[20] The officer testified he did not know what the driver's intentions were or what "he was grabbing" so he drew his firearm and indicated "Police, don't move". He continued to the driver's side window which was up, pulled on the door handle which was locked and yelled several times to the driver to open the door and put the window down.

[21] He testified the accused driver responded, "Fuck you. Leave me alone". The officer said he "asked" the accused several times to unlock the door but the accused did not.

[22] He estimates this took place over a matter of seconds. During that time the right hand turn lane had cleared and as soon as it had cleared of other traffic the truck accelerated into the right hand lane and at a high rate of speed with "smoke coming from the back of the truck" drove over a sidewalk. It was believed by the officer in the process of doing this one of the tires of the truck also drove over his foot as he "felt pressure" on one of his feet.

[23] The truck went over the curb and drove northbound on Norfolk Street. The officer returned to his cruiser, again advised dispatch the vehicle had fled from him and proceeded northbound on Norfolk in pursuit of the truck. He observed the truck to go from northbound lanes on Norfolk, enter the southbound lanes into oncoming traffic, proceed through a red light after going around stopped vehicles and continue northbound on Yarmouth Street where the officer again radioed dispatch.

[24] The officer did not note the estimated speed but stated the vehicle was travelling at a high rate of speed. He was operating his cruiser at a safe rate of speed in consideration of the traffic, both pedestrian and vehicular, present at the time and the truck was pulling away from him.

[25] He followed the truck up Yarmouth Street where it then made a left hand turn onto Woolwich Street. After the left hand turn had been made, the officer observed another police cruiser with emergency lights activated following the vehicle and saw the truck pull over to the side of the road.

[26] The officer pulled his cruiser in front of the truck and both he and the other officer exited their respective cruisers, approached the driver's side door and noted at this time that the driver's window was down.

[27] Constable McArthur indicated the accused remained upright in the driver's seat. At this time the officer had his hand on his firearm but did not draw it and told the accused to get out of the vehicle. The accused refused and responded, "Fuck you, I am not getting out, leave me alone".

[28] The demand was made several times and after failing to exit the vehicle voluntarily, Cst. McArthur reached in, unlocked the door and the accused was pulled physically from the vehicle by this officer as well as the other officer on scene, Cst. Weinstein.

[29] There was a struggle outside of the vehicle, the accused continued to resist and a wrestling match of sorts occurred with the accused ending up on the ground face down. He was handcuffed and at that point this officer noted that the accused had a bloody nose. At 1:26 p.m., approximately four to five minutes after the officer had initially observed the vehicle at 1:22 p.m., the officer arrested the accused for the charges before the court.

[30] When searching the accused, a digital scale and small empty baggies containing nothing were located on his person. This officer's "experience at work" apparently indicates to him these are the type of baggies that are used to package controlled substances, although no controlled substances were found on the accused or in the vehicle.

[31] Constable Weinstein was the officer that transported the accused to the detachment.

[32] A number of photographs were shown to the officer, which had been taken by a reporter at the Guelph Mercury (the local newspaper) with its place of business near the intersection where the vehicle was approached by the officer with gun in hand. He acknowledged the various photographs, which have been marked as Exhibits #2 through #7, inclusive.

[33] When questioned in-chief as to the location of the window on the truck, the officer indicated the window was up during the entire stop initially and only noted it to be down when the vehicle was eventually pulled over on Woolwich Street. He testified he was concerned as the vehicle when originally approached had fled, and when stopped and approached at the intersection of Macdonell and Norfolk Streets the apparent actions of the accused, who according to this officer went down "out of my view" caused him to draw his firearm for his own safety "hoping to put an end to the incident". At that point the accused still continued to refuse to comply, told the officer to "fuck off and leave him alone" and then fled the scene in a manner that the officer described as dangerous. Although he had been unable to estimate the speed initially, he then indicated when he saw the vehicle proceeding up Yarmouth Street it was proceeding at "well over 100 kilometres an hour".

[34] Of note, after the vehicle had mounted the sidewalk and proceeded on Norfolk Street the officer was some distance behind. He could not recall when the accused went through a red light at Norfolk and Paisley Streets whether other traffic was stopped or affected by his driving as he was "farther back" and was not able to tell.

[35] When asked about the demeanour of the accused during this event, the officer indicated he did not feel the accused was angry but compared his behaviour to "someone suffering from a mental illness". He described the behaviour as irrational and went on at some length to describe why he felt that way. When asked about how the bloody nose occurred, the officer could only "speculate" that the nose was injured when the accused was grounded by the police.

[36] During cross-examination of note are the following:

(1) Constable McArthur was asked if he had a criminal record. He made a point of telling the court that he does not have a conviction but rather a finding of guilt and an absolute discharge arising from a charge of assault stemming from a "drunk arrest". He also had just recently received a summons for a charge of assault cause bodily harm, apparently also stemming from another arrest the officer had made. Again, the officer pointed out that he had been cleared of any wrongdoing internally with respect to that matter but the individual involved had "acquired counsel" and had taken steps to have a charge laid. He was also asked if there had been other complaints filed against him and the officer's response was "Absolutely". When asked by counsel how many, he indicated "I couldn't tell you".

(2) The officer agreed that at 6'1", 250 lbs., with his arms covered in tattoos people "may be" intimidated by him, although he was quick to point out to counsel that on the day in question he was wearing a long-sleeved shirt as evidenced by the photograph marked as an exhibit. The officer did agree, however, that the young accused before the court might "possibly" have found him "quite intimidating on the occasion in question".

(3) The officer agreed that up to when he had first approached the accused's vehicle the only thing the accused had done wrong was to squeal his tires. This, even to the officer, was not a "big deal at that point". He denies that he was angry and stated it was the accused that escalated the situation by failing to respond initially, squealing his tires and fleeing the area at "a high rate of speed".

(4) The officer testified the siren had been activated intermittently when questioned as to what took place initially on Wyndham Street. Although the officer referred to Norfolk Street in his evidence, it was quite apparent that he was speaking of the initial stop. He was consistent in his evidence that it was his belief the accused knew he was there, having had made "eye contact with him" on two or three occasions, initially when he squealed his tires for the first time, then at the one stop and when he approached the vehicle yelling "Police, stop". All of this in place, according to the officer, and the accused still "takes off".

(5) The officer estimated the time to be about five seconds from the time of the stop at Macdonell and Wyndham until stopping at the intersection of Macdonell and Norfolk. The officer did agree "absolutely" that the entire incident started as a "very minor thing".

(6) The officer testified it was his initial intention simply to speak with the accused about the noise and if he was apologetic would have dismissed the issue with a warning. However, this officer's practice apparently is if an individual does not acknowledge the wrongdoing and makes it an issue, a ticket would have been issued and that individual could have the matter dealt with in court.

(7) The officer was clear when he initially approached the vehicle the siren was off and when the vehicle turned right onto Macdonell Street the accused again was "squealing his tires". He did acknowledge that when the accused turned right onto Macdonell Street there was no traffic offence being committed other than the squealing of tires, although the officer indicated at that point there also was a criminal offence of "fleeing from the police as well". When the turn was made not only were his tires "squealing" but they were also "smoking". The officer testified as he approached the vehicle the accused "peels off at a high rate of speed going around the corner".

(8) When stopped at the next intersection, the officer drew his firearm for the reasons he indicated and pointed out to counsel during cross-examination that he employed the "universal cover mode", meaning that his finger was "nowhere near the trigger" as shown in the photographs.

(9) The officer adamantly continued to take the position he had made eye contact with the accused right from the outset by looking at him and looking in the driver's side rearview mirror. He denied that the actions of the accused, when the gun had been pointed at him, were consistent with "simply panicking". The officer did testify that in 13 years he has drawn his firearm less than half a dozen times and agreed it was a rare occurrence to do so.

(10) During further questioning, the officer then seemed to agree that panic might be a possible reaction to the drawing of a gun. He was, however, very reluctant to agree that was a possibility here as it was a police officer who had already tried to pull the accused over, he had fled, ducked underneath the passenger seat and then left the scene again.

[37] In questioning by the court, the officer agreed that when the vehicle stopped at Macdonell and Norfolk there were two to three vehicles in front of it awaiting to turn left and the changing of the signal light. He further agreed that as the accused's vehicle proceeded up Macdonell Street to the intersection at Norfolk there was another street off of Macdonell prior to that which would have required a left hand turn onto what would be Wilson Street.

Evidence of Constable Todd Weinstein

[38] Constable Weinstein, also a member of the Guelph Police Service, was on duty on December 13, 2012. At approximately 1:24 p.m. that afternoon he was operating a marked cruiser northbound on Wyndham Street when he received information over dispatch regarding Cst. McArthur investigating a red pickup truck. He was advised that the truck had "taken off" from Cst. McArthur and in the process had run over his foot.

[39] As he proceeded in his cruiser he observed the subject truck turning left off Yarmouth Street onto Woolwich Street at, what the officer testified, was an "extremely high rate of speed as it came around the corner". The officer's definition of high rate of speed apparently is 25 to 35 kilometres an hour, which the officer testified, was "extremely fast" entering onto Woolwich from Yarmouth.

[40] The officer testified he assumed the vehicle had accelerated as there was a "large plume of smoke exiting from the tailpipe of the vehicle".

[41] The officer acknowledged that, although there is a stop sign at Yarmouth as it enters Woolwich and he was of the opinion that the vehicle had not stopped at the sign, he did not see the vehicle at that particular stop sign.

[42] The officer activated his emergency lights, followed the truck, the truck slowed down, came to a stop and pulled to the right. Almost immediately Cst. McArthur arrived in his own cruiser and the two officers approached the truck. They were both yelling at the accused to show his hands and exit the vehicle, but the accused did not obey their instructions.

[43] He went to the passenger side, observed the driver's window to be down and, as the passenger side was locked, returned to the driver's side where he and Cst. McArthur forcibly removed the accused from the vehicle.

[44] The accused struggled and was ultimately brought to the ground and handcuffed. As the officer put it, sometime during the "struggle" the accused suffered a bloody nose.

[45] The officer testified the accused was acting in a bizarre manner, taking deep breaths and making comments that he should not have been driving his vehicle that way. He also made comments that his father was in the hospital and he had "smoked some marijuana" earlier that day. He observed the accused's hands and body to be "extremely shaky" and again noted the accused was not making sense, but what he was saying was that he clearly understood what he had done was wrong. The officer did not note signs of impairment, just what the officer described as odd behaviour.

[46] In cross-examination the officer agreed that the accused's conduct was consistent with someone being afraid or "being panicked". The officer also agreed the entire event took place very quickly and further agreed that if someone was trying to evade the police it would not make sense for the individual to stop for traffic, nor stop at a traffic light waiting for other traffic when there was an alternate route available. The officer agreed that Wilson Street would have been available if someone placed in that situation "wanted to get away".

EVIDENCE OF THE DEFENCE

Evidence of Ian Bailey

[47] Mr. Bailey is a civilian that just happened to be leaning out his apartment window enjoying a cigarette on December 13, 2012. His apartment is situated near the corner of Macdonell and Wyndham Streets, the location where Cst. McArthur testified he originally approached the accused's vehicle. As Mr. Bailey was having his cigarette he heard a police siren go "bleep", which Mr. Bailey described as a brief use of the siren.

[48] His attention was then drawn to the cruiser operated by Cst. McArthur behind a red pickup truck. The lights controlling that intersection were red and traffic had stopped but it was still creeping forward. There were other vehicles in front of the truck. He observed the driver of the truck as he could see his hands, although he could not see his head, and it looked to the witness as if the driver was "tapping on his steering wheel like he was listening to music".

[49] Mr. Bailey was of the view that the officer had not gotten the attention of the individual as the traffic moved forward. Mr. Bailey also was of the view that when the officer got out of his vehicle, the accused, who was ultimately found to be operating the truck, was not aware of the officer's presence at that time.

[50] He described the officer as getting out of his cruiser pretty slowly, walking up and while at the back left wheel of the truck the traffic ahead started to move again.

[51] At that point the truck moved as well, the officer yelled and Mr. Bailey believed the officer tried to hit the back of the truck, but the truck kept moving.

[52] The officer then hurriedly, appearing a "bit agitated", returned to his vehicle. The truck proceeded right onto Macdonell and as it turned a car in front of it came out of angled parking causing the truck to move to the left to avoid the vehicle which was being moved from a parked position. It was at that point Mr. Bailey describes the truck as "sort of swerving" around the vehicle and causing the wheels to "squeak".

[53] Mr. Bailey remembered thinking at the time it was unfortunate because he imagined the officer's perspective was that the truck was trying to tear away but all he was really trying to do was get around the parked vehicle which had pulled out in front of him. It was Mr. Bailey's impression that the officer did not have the driver's attention "at all".

[54] Mr. Bailey indicated nothing he observed of the truck would indicate it was doing anything other than moving with the line of traffic. It did not appear to be moving aggressively in the least.

[55] In cross-examination he was questioned as to how he came to provide the information and his observations with respect to this matter. He explained that in very believable detail and came forward because it was his view that "some poor bugger is going to get into more trouble than he deserves".

[56] In cross-examination as well he acknowledged the lights were activated on the cruiser when the officer approached and he believed they remained on, but continued to maintain it was a short bleep or bloop from the police siren, that was all he had heard. He indicated he was aware of the police lights being on because he was viewing the matter from above. He was consistent in cross-examination with respect to his observations thereafter and added that when the vehicle had not stopped the officer did not look happy, tried to hit the truck and then ran back to his own cruiser. At no time did this witness observe the truck to accelerate rapidly.

Evidence of Edward McMullen

[57] The youthful accused elected to give evidence on his own behalf. He was not asked his age but the information notes his birthdate to be November 28, 1989, making him 23 years of age at the time of the offence. He presented his evidence in a straightforward and candid fashion. He acknowledged driving the truck on the day in question.

[58] The truck is a 1988 older pickup truck, recently outfitted with snow tires which, according to the witness, were softer than the regular tires and because of that "they squeal easy".

[59] He was operating his vehicle on Wyndham Street in Guelph, listening to his MP-3 player through "ear buds". He denies being aware of the presence of the officer until the intersection of Macdonell and Norfolk Street when the officer was at his window with gun drawn and the cruiser pulled up right beside him at that point.

[60] He was very clear that he was unaware of the officer's presence or pursuit by the officer up to that point in time. He had his "ear buds in and I was just driving on".

[61] When asked by counsel if his tires may have squealed, he indicated they may have "chirped a little bit" for the reasons noted. He first saw the officer at the intersection when the officer had his gun drawn and his initial feeling was one of "extreme fear". He felt "endangered" by the presence of the weapon and acknowledged his speeding away from that location. When the officer approached, the officer was saying something to get his attention through the window but the accused was not aware of exactly what was said as the officer appeared to be "very incoherent and loud". The next thing that happened was best described when the accused states, "The gun overall was just so close it was making me very fearful and my only reaction at that point was to pull away in a panic".

[62] He acknowledged leaving the scene but did not recall going through a red light, although he went through an intersection which is governed by lights. Once he had made the turn onto Norfolk Street and was going straight he noted that he "very quickly realized this was not the thing I wanted to be doing". He proceeded down Norfolk, turned onto Suffolk and then left onto Woolwich Street where he pulled the vehicle over at a parking space and turned off the engine.

[63] He heard sirens, had the engine turned off, his hands up and was, as he put it, "in full surrender mode". He states he did what he did because he was in a state of panic but within a couple of minutes he came to his senses and stopped. When asked if it was his intention to evade the police, he indicated, "Not whatsoever, it was just out of a pure endangerment feeling of panic and fear. Fear of a weapon".

[64] In cross-examination he did not recall swearing at the officer as testified to by Cst. McArthur, both at the time the gun was drawn and when the vehicle ultimately came to rest in the presence of Cst. Weinstein. It is of note that Cst. Weinstein does not state anything in his evidence about the words actually spoken by the accused, only that he was refusing to exit the vehicle.

[65] Mr. McMullen maintained he was in a surrender position, was not in a struggle with the police and described how he was pulled from the vehicle by Cst. McArthur. He acknowledges there was "a lot of yelling" but the officer reached in the open window, grabbed him, pulled him out and as he did so he was tripped by the officer and fell to the ground at the same time with his hands underneath him. He described how Cst. McArthur had reached in the window, attempted to grab his face, missed the first time, grabbed it the second time and then banged his head off the glass.

[66] It was put to him by Crown counsel that he had been non-compliant but he denied that. He stated that when he was removed from the vehicle he was put to the ground immediately, hands under his chest and suffered a "few broken teeth" as well as a broken nose.

[67] He acknowledged smoking "a minimal amount of cannabis" that day. He acknowledged the scales and the baggies were for his own use but disagreed that the presence of those items would cause him not to want to be stopped by the police. He indicated he was fine being stopped by the police and the presence of those items caused him no concern at all.

[68] He was consistent in his position that he had not seen Cst. McArthur on Wyndham Street and, in fact, did not see any lights activated on the cruiser until he was approached and had the weapon drawn on him. At that time when the officer approached with the gun he knew "for sure he was there". Mr. McMullen indicated he would have stopped if he had known the officer was present earlier.

[69] He denied he was purposely squealing his tires and provided a rather detailed, and quite believable, explanation as to why the tires were, in his words, "chirping" on that particular day.

[70] Mr. McMullen indicated when the officer finally did approach with gun drawn it was noisy, the officer was incoherent, the gun was shaking and he felt fearful. He was a little uncertain if the lights on the cruiser were on at that point since, as he put it:

"Actually he pulled it over so quick next to me and came out with the gun blazing that I didn't even have time to really look at the, at the car at that point. It just cut me off.

Question: Gun blazing? What do you mean by gun blazing?

Answer: He almost jumped over his hood and then he almost jumped over my hood pointing it at me the whole time while making his way to my window."

[71] At that point he testified he "felt endangered for my life" and that he was "potentially just going to be shot for nothing" so he decided to remove himself from the area and drove away.

[72] He denies travelling at any excessive speed but does acknowledge that he accelerated away and quickly realized that it was a bad decision that he had made and pulled over.

[73] He was shown the various photographs and confirmed that the tire marks on the sidewalk could very well be from his vehicle and that he was just using enough speed to remove himself from the scene. As he put it, "I used my tool to do what I could to get me away from a more dangerous tool". When asked what the dangerous tool was he was getting away from, he indicated that it was "an uneducated gun". His evidence is quite clear he acted out of fear of endangerment and panic and felt that he was "going to be shot at any moment".

[74] When put to him by the Crown that he was not thinking clearly on that date, his reply was:

"Who could think clearly under a situation like that? It was extreme endangerment. You know? Unless you are faced with that regularly I couldn't see how, you could regularly, you could deal with it so easily".

[75] He confirmed he was on the way to the hospital to visit his father and that he had smoked marijuana earlier that morning. He was asked when he had removed his ear buds and stated that he did not actually remove them but when he was pulled out of the truck they got tangled in the seatbelt and were left in the vehicle.

[76] In reply, a photograph was marked as Exhibit #8 showing the presence of a chipped tooth which Mr. McMullen says was occasioned in the arrest by the police.

[77] In questioning by the court Mr. McMullen confirmed he had pulled over realizing that there was "no getting away and that the best thing I could do is just pull over and give up".

[78] That concluded the evidence.

ANALYSIS AND RULING

[79] The charges before the court are of course criminal charges and as with all criminal offences the accused, in this case Mr. McMullen, is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of the accused rests with the Crown and it never shifts. The accused does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if, after I consider all of the evidence, I am satisfied the Crown has proven the case beyond a reasonable doubt.

[80] It is my duty as a judge to consider the evidence carefully and dispassionately without any trace of sympathy or prejudice for or against anyone involved in this proceeding. Then, after reflecting upon all of the evidence of each individual witness, I must weigh it and make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence or none of the evidence given by that witness. After considering the whole of the evidence presented in the case, both by the Crown and the defence, I must reach a conclusion as to the guilt of the accused beyond a reasonable doubt or otherwise acquit him.

[81] I further remind myself that the object of assessing evidence in a criminal case is not to choose one witness over another. It is to determine whether the Crown on the whole of the evidence has proven the guilt of the accused to the degree required. The ultimate question is not which side is telling the truth but rather on all of the evidence whether the case is proven to that degree.

[82] Mr. McMullen has given evidence in this matter and credibility is an issue to be determined. I instruct myself therefore on the following basis:

(1) If I believe the evidence raising a defence or negating an essential element of the offences, I must acquit the accused;

(2) If I do not believe the evidence raising a defence or negating an essential element of the offences but I am left in reasonable doubt by it, I must also acquit the accused;

(3) Even if I am not left in doubt by evidence raising a defence or negating an essential element of the offences I must ask myself whether on the basis of the evidence I do accept I am convinced beyond a reasonable doubt of Mr. McMullen's guilt.

[83] In this case, it is instructive before looking at the essential elements of the offences and considering the various case law to deal initially with the evidence and make findings as to the facts that the court accepts.

[84] The court has had an opportunity to hear from a number of witnesses and also observe those witnesses give their evidence during the course of the trial. In dealing with the evidence, I note the evidence of the witness Nancy Saliba really does not assist the court a great deal. The events that she was relating to the court occurred approximately a year ago and her recollection of the events has been somewhat clouded by the passage of time. Not only did she have the cruiser in a position other than testified to by other witnesses and demonstrated in the photograph, she also did not see what was apparently the most striking feature of this whole event, the presence of the handgun drawn by the police officer and pointed at the accused.

[85] The failure of the witness to observe what should be readily apparent given the photograph that depicts the event raises some concern about the balance of her evidence as well, particularly as it relates to the issue of whether or not the driver's window was up or down. Constable McArthur's evidence in that regard is clearly the window was up at all times until the vehicle was ultimately stopped. The evidence of Mr. McMullen really does not address the issue of whether the window was open prior to him being stopped. He does acknowledge the window was down at the time of the stopping and that is in fact how Cst. McArthur was able to gain access to him and ultimately remove him from the vehicle.

[86] This witness was some ten to 30 feet away, heard the demands of the officer to the accused. She heard no responses from the accused but she did confirm the demands from the officer were loud and firm.

[87] Dealing with Mr. McMullen, Mr. McMullen did not present as an unimpressive witness. There were some items in his evidence which cause the court concern to be certain, but his evidence generally was presented in a straightforward manner. He was responsive and forthright in answering the questions both from the Crown and the defence.

[88] He gave his evidence in a calm, polite and even manner. He did not strike the court as an individual who was attempting to mislead, but one who was in fact attempting to convey quite honestly and sincerely the circumstances surrounding the incidents on December 13, 2012. His evidence was internally consistent and although cross-examined thoroughly and skillfully, he did not waiver in his position, particularly surrounding the circumstances leading up to the drawing of the gun and thereafter. He was candid in disclosing his use of marijuana earlier that day and although that admission might cause some concern, the evidence of the officers, and particularly Cst. Weinstein who indicated he saw no signs of impairment, lead the court to find there is a total absence of evidence that the consumption of marijuana earlier had any impact on the conduct of Mr. McMullen when confronted by Cst. McArthur.

[89] Mr. McMullen does not downplay his actions in leaving the scene. He acknowledges the inappropriateness of doing so in hindsight and, in fact, very shortly after he left the scene in the manner that he did he reconsidered the matter further and stopped a short distance away, completely, as he put it, in the "surrender mode". He had a reasonable and quite believable explanation with respect to the "chirping" or "squealing" of the tires. (The terminology used in that regard depends on the witness giving evidence.) He does not in any way take issue with the fact that the officer might have had a legitimate reason for stopping him with respect to the "chirping" in place. The photographs assist in understanding Mr. McMullen's evidence with respect to being stopped and approached by the officer in an extremely aggressive manner with a gun pointed directly at the window. The photographs do not show anyone trying to evade or duck under the seat, but are more consistent with Mr. McMullen being fearful as he testified to and moving away from the pointed gun. There was nothing found within the vehicle that would lend support to Cst. McArthur's position that it appeared Mr. McMullen was possibly reaching for something. There was nothing found on his person or in the vehicle which would cause him to be concerned about the presence of the police officer. That concern I find ultimately was generated solely by the actions of Cst. McArthur and none on the part of Mr. McMullen.

[90] Mr. McMullen's version of the events, I find, to be quite candid and the version that more accurately reflects what actually took place on that particular day. I find that he was unaware of the presence of Cst. McArthur until the gun was presented. All of the evidence, including that of Mr. Bailey, confirms that to be the case. Constable McArthur's evidence with respect to the initial viewing and the eye contact being made is not accepted. It is rather suspect that the officer notes eye contact within his evidence on multiple occasions, clearly attempting to convey to the court that Mr. McMullen was aware of his presence long before the gun was drawn. That, I find, is simply not the case.

[91] Mr. McMullen was unaware, although he perhaps should have been aware, absent the ear buds that were being employed to listen to music, of the presence of the officer at the corner of Wyndham and Macdonell Streets. He was not. He left without any intention of avoiding the police because he simply, I find, did not know the officer was there.

[92] His actions up to the point of the stopping at the intersection of Macdonell and Norfolk Streets some five seconds later are entirely consistent with his being unaware of the presence of the officer until the cruiser pulled up beside him, "guns blazing" as he put it. If he was really trying to avoid and evade the police he would have not likely joined the line of cars stopped for a traffic light waiting to turn left. He would have been more likely to have turned left on Wilson which would have been the quickest and most unobstructed path for him to take. He would not have simply pulled up behind cars awaiting a proper change in lights with the intention then to proceed with the alleged evasion.

[93] He says he panicked and I believe him. He says he did so out of a fear of endangerment and although realistically one might question why he would feel endangered by the presence of the police officer with a drawn gun as opposed to a regular citizen with a drawn gun, it seems to me it is quite believable in the circumstances here. He did not in any way appreciate the presence of the officer until the very moment this very large police officer approached him in a very aggressive manner brandishing a firearm in a pointed position at the window of his truck. His actions up to that point were completely innocent and the only things the court could probably be critical of is that he should have taken more active steps to inflate the tires properly and not detract from his driving by the use of an electronic device, i.e. the MP-3 player. He had no idea the officer was there. The eye contact I find is the officer's unsubstantiated opinion only and, to be quite frank, is quite unrealistic and not believable.

[94] I also find that the route taken by Mr. McMullen following his leaving the scene in front of the Albion Hotel was as he described. He ends up effectively in the same position at the corner of Suffolk, Yarmouth and Woolwich Streets as observed by Cst. Weinstein but I find that he did in fact take the route up Suffolk Street and then turned left on Woolwich and stopped as opposed to coming down Yarmouth. Constable Weinstein was the only one that actually observed that, save and except Cst. McArthur, but Cst. McArthur was some distance back and I find his evidence overall, as I will explain shortly, is less than ideal about the entire event. However, with respect to Cst. Weinstein he does not satisfy the court that he realistically saw Mr. McMullen come out of Yarmouth Street. He says it was his opinion Mr. McMullen did not stop at the stop sign there but then acknowledged that he did not see the vehicle at the stop sign. His opportunity to view where exactly Mr. McMullen came from was relatively brief and the intersection at that particular location has Yarmouth Street and Suffolk Street in very close proximity. It probably makes little difference ultimately, but I accept Mr. McMullen's path of traffic as he noted up to the point where he came to a final rest.

[95] Constable McArthur's evidence is a concern to the court overall. This is an experienced police officer who, in my view, overreacted in the extreme in the circumstances present. The same, of course, could be said of Mr. McMullen's actions by leaving the scene in the manner that he did, but Mr. McMullen is, as far as I am aware, without criminal record or previous driving history and presented as an individual who, although acknowledging he acted inappropriately, acted in a way that ultimately the court finds quite understandable.

[96] Constable McArthur on the other hand is an experienced and I find apparently an aggressive police officer who gave Mr. McMullen absolutely no benefit of the doubt following what should have been a very routine minor traffic stop and if, according to Cst. McArthur's evidence, Mr. McMullen had been polite and accepted responsibility he probably would not even have been presented with a ticket.

[97] Constable McArthur, it seems to me, went out of his way to provide details of matters he felt the court might ultimately consider important. On more than one occasion he made it a point to tell the court that there had been eye contact with Mr. McMullen prior to the initial approach at the corner of Wyndham and Macdonell Streets. How this took place is beyond the court, but given what ultimately was found, or more appropriately not found, on the person of Mr. McMullen or in the vehicle one wonders why Mr. McMullen, if he had made eye contact with the officer as the officer indicated right from the very get-go, would have acted in the way that he did. There was absolutely no reason for him to do so. There is nothing in the evidence to indicate why he would be fearful or concerned about being stopped by the police.

[98] Indeed, as I noted, Mr. McMullen's actions up to the time the gun was brandished clearly speak of someone who simply did not know the officer was looking to stop him.

[99] Mr. Bailey's evidence with respect to the interaction at Wyndham and Macdonell Streets was, I find, very credible and reliable. He is an individual who came forward to simply convey to the court what he observed. What he observed was a police cruiser with lights on perhaps approaching the back of the truck at the intersection of Macdonell, which intersection was either governed by a red light at the time or with traffic moving slowly to turn right on Macdonell. He observed the officer get out of the vehicle, approach the truck and yell something. Mr. Bailey also observed Mr. McMullen tapping his fingers on the wheel consistent with someone listening to music as testified to by Mr. McMullen and as opined by Mr. Bailey.

[100] Mr. Bailey was not entirely satisfied the officer actually contacted the vehicle as indicated by Cst. McArthur, but he does indicate that the officer did approach and attempted to draw the attention of the accused without success. The accused then turned the corner onto Macdonell Street, I find not at an excessive rate of speed. The officer appeared to be agitated to say the least that Mr. McMullen had not stopped, returned to his vehicle and reported to dispatch the vehicle was fleeing.

[101] Constable McArthur exaggerated his evidence in spots. There is nothing to indicate the turn on Macdonell was inappropriate from his evidence. In fact, Mr. Bailey also had an opportunity to see him turn in full and acknowledges that Mr. McMullen pulled his vehicle to the left to avoid a car that was moving from a parking space. Constable McArthur has Mr. McMullen fleeing up Macdonell Street but the evidence simply does not support that position. All of this apparently takes place after the officer is astute enough, allegedly, to note Mr. McMullen observing him in the rearview mirror as he had approached him at Wyndham and Macdonell, a circumstance that I do not find took place. Similarly, Cst. McArthur refers in his evidence to the tires smoking whereas no other witness does so and, in fact, Cst. Weinstein indicates the smoke was coming from the tailpipe.

[102] By the time the officer arrived at the intersection of Macdonell and Norfolk Streets Mr. McMullen was simply waiting in line, apparently still listening to music, to make a proper left hand turn behind two to three other vehicles. The officer, however, is in full chase mode without even considering the possibility that Mr. McMullen simply was not aware of his presence earlier.

[103] I find Cst. McArthur's evidence with respect to Mr. McMullen reaching under the seat or ducking towards the floorboards to be exaggerated and presented as a justification for drawing his weapon. This court in no way wishes to question the conduct of an officer in doing so and accepts that police officers are trained only to draw their sidearms in circumstances where it is required because of a danger to themselves or others or in cases of urgency. However, there is nothing urgent in the circumstances here requiring a firearm to be drawn on an individual who cannot possibly go anywhere because the right hand lane is congested and the left hand lane is stopped with other vehicles in front. There is nothing in the actions of the accused before the gun was drawn to reasonably explain why it was necessary to do so. It was an overreaction on the part of an experienced police officer who should have known better. Again, the court is not attempting to second-guess the officer as the officer was the one who was present, but the court does not accept the state of urgency suggested by Cst. McArthur in his evidence and finds his evidence in that regard to be unreliable.

[104] Constable McArthur, I find, on the day in question was a police officer who was simply looking for some issues on the main street as part of his patrol. He observed a dated red pickup truck driven by a young male with tires squealing, as he puts it, and he does a u-turn to follow the vehicle. There is nothing erratic in the driving. The vehicle stops for a red light and then proceeds to the next intersection and slows down. The officer does not, I find, activate his siren as he suggests and I accept Mr. Bailey's evidence in that regard. Although there was a small "bleep", there is no continuous noise that would signal to Mr. McMullen he should stop.

[105] There was no eye contact. Constable McArthur's evidence in that regard is extremely self-serving and is rejected. He acted aggressively in the approach to an individual who simply did not know he was there and at a location where the officer should have reflected on the fact that if Mr. McMullen was fleeing why he did not travel up Wilson rather than get in a line of traffic and wait for a light to change.

[106] What happened after the turn onto Norfolk Street, I find, is that the officer was a good distance back, Mr. McMullen was not aware he was necessarily being pursued and when he appreciated what he had done was totally inappropriate he pulled over.

[107] This whole event takes place in a matter of minutes and covered an unknown distance. It is really hard to judge the actual time involved, but given Cst. McArthur's evidence that he was on the main street at 1:22 p.m. and the arrest was made at 1:26 p.m. and given Cst. Weinstein's evidence that he observed Mr. McMullen's vehicle at or about 1:24 p.m., it seems that the entire event took place in less than five to six minutes from the beginning to the end including the initial exiting of the officer from his cruiser at Wyndham and Macdonell which, I find as noted, went unobserved by Mr. McMullen.

[108] Constable McArthur's evidence is also not accepted with respect to the utterances alleged to have been made by Mr. McMullen. Mr. McMullen does not acknowledge swearing at the officer and Ms. Saliba heard nothing from the accused, even though on her evidence the window was rolled down. Constable Weinstein indicates the accused refused to get out of the vehicle but does not provide any particulars of any actual wording of utterances made by Mr. McMullen at that time. There is nothing to confirm the evidence of Cst. McArthur, and to be quite candid, I am not prepared to accept his evidence without reservation and without at least having a reasonable doubt that his evidence with respect to the utterances made by Mr. McMullen is reliable.

[109] In summary, the court finds that the evidence of Cst. McArthur was self-serving and presents a number of concerns. It seems to have been designed to address issues with respect to matters such as a knowledge of Mr. McMullen as to his presence before the drawing of the gun and justification for the drawing of the gun in circumstances the court finds objectively could not possibly have been warranted. Mr. McMullen was driving with some noisy tires on the main street in broad daylight, had nothing to hide on his person or in the vehicle and the court finds that Cst. McArthur created the situation as a result of a questionable and flawed analysis on his part of the circumstances present.

[110] In summary then, I accept the accused's evidence with respect to the events of December 13, 2012. I find that he was not aware of the presence of the officer until awaiting the change in the traffic light at Norfolk and Macdonell Streets. Once he was presented with the situation of the officer pointing the firearm at him he panicked and left the scene. I accept that a short distance thereafter on his own, although fully appreciating sirens in the area, he pulled over and was then physically pulled from his vehicle, handcuffed and arrested, suffering the injuries that he noted.

[111] Accepting that evidence, the court must still consider whether or not the evidence accepted is sufficient, even on the accused's own version of the events, to satisfy the onus on the Crown to establish the essential elements of both charges beyond a reasonable doubt.

(a) The Charge of Flight from Police

[112] Section 249.1(1) of the Criminal Code indicates that everyone 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 reasonable in the circumstances.

[113] Looking at this particular charge then, the Crown must establish beyond a reasonable doubt:

(1) the accused was operating a motor vehicle;

(2) that he operated the vehicle while being pursued by a peace officer operating a motor vehicle; and,

(3) that he failed without reasonable excuse and in order to evade the peace officer to stop his vehicle as soon as was reasonable in the circumstances.

[114] In dealing with this charge, it is important to look at the entire chain of events and appreciate my acceptance of the evidence of Mr. McMullen as to the circumstances of the events on December 13, 2012.

[115] There is no doubt the accused was operating his motor vehicle on that date but there is, in my view, at the very least a reasonable doubt that he was doing so in contravention of s. 249.1(1) of the Criminal Code.

[116] I have come to that conclusion for the following reasons:

(1) Although the Crown's case has not been particularized in the charge itself, it would seem the allegation of evasion on the Crown's theory initiates at the corner of Wyndham and Macdonell Streets. At that point after allegations of eye contact having been made previously on more than one occasion, the officer exits his cruiser and approaches the truck driven by the accused from behind. The accused then proceeds, I find, within the proper flow of traffic and turns right on Macdonell Street. I accept that all took place as testified to by both Mr. McMullen and Mr. Bailey. Specifically, I find there was no excessive speed with respect to that turn and any "chirping" of tires was occasioned as a result of the manoeuver of the accused's vehicle to avoid someone coming out from an angled parking location as seen by Mr. Bailey.

(2) This is apparently the initial "flight" suggested by Cst. McArthur who immediately returns to his own cruiser and radios dispatch to report the motor vehicle as fleeing. This, I find, was a dramatic overstatement and ultimately an incorrect one. I have already indicated I do not accept the officer's evidence in that regard and I find Mr. McMullen was not fleeing at all. I find at that point he was completely unaware of the presence of the officer. He was listening to music and turning in a proper manner as suggested by the evidence of Mr. Bailey and indeed somewhat confirmed by Cst. McArthur's own evidence when he stated that other than the unnecessary noise and the now-apparent flight from the police there was no other Highway Traffic Act offence committed by Mr. McMullen when he made the turn at Macdonell and Wyndham Streets. Mr. McMullen was in fact, I find, oblivious to the presence of the officer at that point and not even aware that he was being "pursued". As I noted previously, if this was an attempt to evade at that point one wonders why Mr. McMullen would not have taken the exit off Wilson rather than get in a line of traffic waiting for a light to change at the corner of Macdonell and Norfolk Streets.

(3) There is then the second act, so to speak, where Mr. McMullen enters the line of traffic waiting for the traffic light to change and while awaiting that Cst. McArthur bursts on the scene and attempts to block Mr. McMullen's forward progress by entering the wrong lane of traffic and pulling the SUV to the side of Mr. McMullen's vehicle. The officer then exits, pulls his firearm in an aggressive and frightening manner as indicated in the evidence of Mr. McMullen, which I accept, and as illustrated somewhat in the photos filed, gets out of the cruiser and approaches Mr. McMullen making loud demands which Mr. McMullen finds to be incoherent.

(4) Mr. McMullen then panics and leaves the scene and proceeds down Norfolk Street after mounting a curb. Within a brief time he comes to his senses and pulls over. I find that he did not pull over as a result of any further aggressive move on the part of the police but because he realized his actions had been inappropriate. He then went into "full surrender mode" and awaited the arrival of the cruisers, which he fully expected as a result of hearing sirens. However, there is nothing in his evidence to indicate he pulled over because of pursuit but simply because his good sense and judgment finally prevailed. I accept his version of that ultimate stopping of his vehicle.

(5) From Macdonell and Norfolk Streets there is an allegation that Mr. McMullen was evading Cst. McArthur. However, I do not find Mr. McMullen appreciated he was being "pursued" by Cst. McArthur at that point in time. Constable McArthur, even on his own evidence, was some distance back as one might expect seeing that Mr. McMullen left the scene in a state of panic and the officer then would have had to return to his vehicle and follow. Constable McArthur is at such a distance he is not able to judge the speed of Mr. McMullen's vehicle, although he notes it is excessive, and then at another point in his evidence is prepared to indicate it was in excess of 100 kilometres an hour, although he himself is driving apparently in a very safe fashion. The distance is not exactly known but it was some distance between the two cars at that point and the pursuit as suggested by Cst. McArthur, which the court finds was more of a following of Mr. McMullen's vehicle, takes place over an unknown period of time or distance. However, the timing that is available would indicate that the so-called "pursuit" was of very short duration and involved a short distance as well.

(6) Further, the court is not satisfied the Crown has proven the actions of Mr. McMullen were undertaken to evade the police, nor were they undertaken without reasonable excuse. Mr. McMullen's evidence is clear that he panicked, felt a sense of endangerment and took the action that he did at the corner of Norfolk and Macdonell Streets to get away from what he described as an "uneducated gun". In his mind he had done nothing, he was not aware of the presence of the officer earlier and had nothing to hide. His fear, in fact, is quite understandable given that set of circumstances and he did not leave the scene to evade the officer but to distance himself from what he perceived to be a situation of danger. Constable Weinstein acknowledges the actions of the accused and his observations of the accused might be consistent with panic or fear and even Cst. McArthur in his own way acknowledges panic as a possible explanation for the actions undertaken by Mr. McMullen, although he discounts that possibility.

[117] As a result of the above, I am left in reasonable doubt that the Crown has proven the essential elements of this particular charge to the degree required and the count of flight from police will be dismissed.

(b) The Charge of Dangerous Driving

[118] This charge is more problematic for the court and is so notwithstanding the court's acceptance of the evidence of Mr. McMullen as to the events involving his interaction with Cst. McArthur on the day in question.

[119] Again, the charge is not particularized but given the court's findings relating to the circumstances up to the stop at Norfolk and Macdonell Streets, there is nothing in the evidence at that point which would satisfy the court that Mr. McMullen was operating his motor vehicle in a dangerous manner as he proceeded to make the turn from Wyndham and then travelled up Macdonell to the stop at Norfolk.

[120] What happens thereafter when confronted by the drawn gun is what the Crown presumably places reliance on for the charge of dangerous driving. The evidence is clear at that point Mr. McMullen accelerated, changed lanes, mounted a curb and then proceeded for some unknown distance and period of time, both of which the court finds were relatively brief and short. He then drove his motor vehicle at a speed beyond the limit and proceeded through an intersection for a short distance thereafter before bringing his motor vehicle to a stop on his own.

[121] Following the completion of evidence the Crown forwarded to the court various case law. This was done to ensure trial fairness and the Crown is to be commended for forwarding that case law which had not been provided at trial by either counsel. The case law and other cases that I have referred to have assisted the court in dealing with the issues raised on this particular charge.

[122] The leading cases dealing with dangerous driving include R. v. Beatty, 2008 SCC 5 and, more recently, R. v. Roy, 2012 SCC 26.

[123] At para. 28 of R. v. Roy, supra, the court defined dangerous driving as follows:

"In Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). (Emphasis in original)"

[124] Also, in R. v. Roy dealing with the fault element and the mens rea required for the offence of dangerous driving, at para. 30 the court set out the test to be applied when determining whether or not the Crown has established the fault element. The court stated there:

"A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is therefore critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness."

[125] Further, the Supreme Court in para. 32 noted the importance of insisting on a significant fault element in order to distinguish between negligence as a basis of civil negligence and that necessary to impose criminal punishment. The court stated the focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. Two questions should be asked:

(1) whether in light of all of the circumstances a reasonable person would have foreseen the risk and taken the steps to avoid it if possible; and,

(2) whether the accused's failure to perceive the risk and take the steps to avoid it if possible was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. (See para. 36).

[126] The minimum fault requirement, the marked departure noted above, involves a modified objective test. Accordingly, while the reasonable person is placed in the accused's circumstances the personal attributes of the accused such as age, experience and education are irrelevant unless it goes to the accused's capacity to appreciate or avoid the risk. If the driving was deliberately dangerous the subjective mens rea would establish the offence, although such proof is not required. (See para. 38).

[127] Determining if the fault element has been established will generally involve drawing inferences from all of the circumstances including any evidence about the accused's actual state of mind. (See para. 39). That the accused drove with the requisite mens rea may be inferred from the fact the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure, the trial judge must examine all of the circumstances in determining whether it is appropriate to draw the inference of fault from the manner of driving. The underlying premise for drawing the inference based on objectively dangerous conduct that constitutes a marked departure is that a reasonable person in the accused's position would have been aware of the risk posed by the manner of driving and would not have undertaken to drive. (See para. 40 of Roy).

[128] Driving which objectively viewed is simply dangerous will not support the inference on its own if the accused departed markedly from the standard of care of a reasonable person in the circumstances. Proof of actus reus without more does not support a reasonable inference that the fault requirement was established. Only driving that constitutes a marked departure from the norm may reasonably support the inference. (See para. 42).

[129] Finally, a momentary lapse of attention without more supports neither the actus reus nor the mens rea. That is not to say the additional evidence may not show a larger pattern that when considered with the momentary lapse establishes the marked departure. A momentary lapse caused by alcohol consumption or by engaging in an activity that is incompatible with maintaining control of the vehicle. It would be open to the trial judge to conclude such is the case that considering the total driving pattern in all the circumstances the marked departure from the norm was established. (See para. 72 R. v. Beatty, supra).

[130] As set out in Beatty, and as well in R. v. Hundal, 1 S.C.R. 867, the mens rea which is required on the charge of dangerous driving can only be found where there is a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused. It is a modified objective test and the mens rea for the offence has been characterized as a blameworthy state of mind.

[131] Of some assistance in the court's analysis in this matter is the case of R. v. Foos, 2010 B.C.J. No. 2490, a decision of the British Columbia Supreme Court from 2010. In that case the accused had been charged with dangerous driving and possession of stolen property. The accused's vehicle there had been subject to a traffic stop by an officer who had been instructed to stop the vehicle to investigate the property offences. The truck was not speeding or otherwise driving unlawfully and was pulled over without incident. The officer approached the vehicle with a gun pointed at the vehicle and ordered the driver to put his hands outside the window and get out of the truck. The driver could not do that because he had his seatbelt on and tried to tell the officer but the officer did not hear him.

[132] There the accused was concerned that the officer wanted to "shoot him" and a second police officer opened the passenger door and got into the passenger seat with his gun also pointed at the accused. The accused was told to step out the vehicle. The officer was partly in the vehicle and both the passenger and driver doors were open. The accused then panicked and slammed his foot on the gas and the vehicle started to spin. The officer fired the gun at the accused a number of times and struck him. He testified he did so because he feared he would be killed or would suffer bodily harm if he remained in the truck. The accused testified he reacted as he did because he panicked when faced with an angry police officer who pointed his gun at him.

[133] In that case the accused was ultimately found not guilty of dangerous driving and although the driving itself was a marked departure from the standard of a reasonable person and was dangerous to the public, the court had a reasonable doubt with respect to the mens rea required. The court did state that mere panic alone was not a defence and found the accused did not make a deliberate decision to drive away but acted instinctively because he perceived he was faced with imminent harm from the firearm. The court felt there that a reasonable person in the shoes of the accused would have perceived an imminent threat from the firearm and although there the accused had made efforts to comply with the officer's demands, the officer appeared to be agitated and still pointed the gun at him. The court took judicial notice that reasonable persons in perilous situations reacted irrationally and found that the Crown had not therefore proven beyond a reasonable doubt that a reasonable person in the situation of the accused would have appreciated the risk created by fleeing having been deprived of rational thought by actions beyond his control.

[134] In that case the court referred extensively to the issue being the mens rea requirement of the charge and that effectively is the real issue here. The actus reus of dangerous driving is established. The accused left the scene at an accelerated rate of speed at the corner of Norfolk and Macdonell, mounted the curb in what appears to have been an aggressive manner and then proceeded at an accelerated rate of speed down Norfolk Street. The accused did not recall if he failed to stop at a red light as testified to by Cst. McArthur at the next intersection, but it is clear that he did take some steps to avoid traffic at that intersection and proceeded down Norfolk to Suffolk, made the right hand turn and then left again on Woolwich before he stopped his vehicle. Although the distance was not great, the mounting of the curb and the speed given the time of day and the traffic present, both vehicular and pedestrian which was or might reasonably have been expected to be present, would certainly comprise actions which would form a marked departure from the norm and would support the actus reus of the charge.

[135] Again, stating the obvious, the real issue here is whether or not the accused had the necessary mens rea. In Foos, supra, the court made it clear that "panic" was not a defence to the charge. The evidence there did, as I find it does here, place the accused as a result of circumstances beyond his control in a situation where he was deprived of the capacity to appreciate either the danger or the risk of driving his vehicle in the manner that he did from the corner of Norfolk and Macdonell. He was approached by an agitated, aggressive officer pointing a gun at the accused who could reasonably believe he had done absolutely nothing wrong up to that point.

[136] I find here that Mr. McMullen acted in an instinctive manner in the presence of from his point of view a very real perception of danger and harm and acted instinctively by driving the way he did thereafter. The lack of deliberation is clearly evident by the evidence of Mr. McMullen which I accept that shortly after he left the scene in the manner he did he realized the wrongfulness of his actions and took steps to pull over to the side of the road. The short distance involved, the brief period of time in place and the action he took once he in fact did have an opportunity to deliberate on his conduct clearly are supportive of his initial flight from the scene being an instinctive action.

[137] Ultimately the decision to be made in this case is similar to that the court faced in Foos where the court found the required inquiry was whether the Crown has proven beyond a reasonable doubt that a person in the accused's position would have reasonably perceived an imminent threat from the firearm. Mr. McMullen had done nothing wrong, was simply waiting for a light to change, the officer approached in an extremely aggressive manner and was shouting incoherently from Mr. McMullen's point of view. One can simply look at the photograph to see Mr. McMullen effectively leaning away from the officer's very aggressive stance at his window to appreciate that Mr. McMullen's perception of endangerment was very reasonable. As noted in para. 42 of R. v. Foos:

"In my view one can take judicial notice that reasonable persons in situations of peril, where control of the peril appears outside their ability, react in often irrational ways, everything from paralysis to appropriate actions to completely wrong actions. Instinctive reactions when one is not trained to recognize dangers and control one's flight or flight instinct are varied, unpredictable and often irrational."

[138] As in Foos, the issue is whether Mr. McMullen who reacted dangerously to perceived peril within a short period of time to properly assess the situation is to be found guilty of criminally blameworthy behaviour.

[139] Adopting the approach in Foos where the court cited para. 37 of R. v. Beatty, I note:

"The objective tests must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger."

[140] There are certainly factual distinctions between this case and the scenario set out in R. v. Foos. In Foos the state of peril might seem even greater than that in the present case, but I keep in mind Mr. McMullen's perception which is the perception that is important. In Foos the accused had pled guilty to possession of stolen property which was the reason for the original stop. In this case Mr. McMullen and a reasonable person in his place would have been understandably shocked and intimidated by the presence of Cst. McArthur at their window when there was nothing in their conduct beforehand or determined thereafter to understand such a drastic manoeuver on the part of the officer. The conduct of Mr. McMullen with that presentation was instinctive and understandable and his conduct thereafter, which is alleged to be criminal, was brief and, I find, brought to an end by his own good judgment. Although some might say when an officer presents a gun you simply become compliant, but that certainly depends on the circumstances of the presentation of the gun. In all of the circumstances here compliance is not necessarily a given.

[141] The test set out in Beatty in determining the mens rea for the offence of dangerous driving indicates that the court should consider the totality of the evidence including the evidence, if any, about the accused's state of mind. The objective test must be modified to give the accused the benefit of any reasonable doubt about whether a reasonable person would have appreciated the risk or could or would have done something to avoid creating the danger.

[142] Here, as in Foos, the court is not satisfied the Crown has proven beyond a reasonable doubt a reasonable person in the circumstances of the accused would have appreciated the risk having been deprived of rational considered thought by actions beyond his control.

[143] As a result, there will be a finding of not guilty and this charge will be dismissed as well.

Released: January 8, 2014

Signed: "Justice G. F. Hearn"