Court File and Parties

Ontario Court of Justice

Date: March 31, 2014

Court File No.: Brampton 3111 998 12-10525

Between:

Her Majesty the Queen

— and —

Mr. Carl Rowe

Before: Justice Patrice F. Band

Reasons for Judgment released on: March 31, 2014

Counsel:

• Mr. V. Aujla, for the Crown
• Mr. Y. Sidky Butler, for the defendant Carl Rowe

Reasons for Judgment

1: AN OVERVIEW OF THE FACTS

[1] On August 3, 2012, shortly after 6:00 p.m., Mr. Rowe was parked on Sproule Drive, a side street just off Main Street in Brampton.

[2] Three uniformed police officers on bicycles were in the area.

[3] An interaction between Mr. Rowe and the officers took place, during which the officers approached his car. Mr. Rowe drove off, and turned right on a red light at a nearby intersection. Police pursued him, but lost track of him. He was later arrested at his home on Vodden Street, also nearby. As a result, Mr. Rowe was charged with a number of offences, including Dangerous Driving. In the face of a defence application alleging a violation of ss. 7 and 8 of the Charter surrounding the search and arrest of Mr. Rowe, the Crown proceeded only on the Dangerous Driving charge.

[4] This trial had an unusual start, insofar as Mr. Rowe initially pleaded guilty before me but that plea was struck on consent when it became clear that he had not understood the full implications of his guilty plea. On consent of all parties, I was invited to hear the trial and I did so without reservation.

[5] All the evidence was heard within approximately 1 hour and 45 minutes.

[6] It consisted of the evidence of PC Gill and PC Green for the Crown, and Mr. Rowe in his own defence.

PC GILL

[7] PC Gill testified that he and his colleagues (PC Green and PC Copeland) were across the street from Mr. Rowe's parked car when Mr. Rowe asked them if he could park where he was. This prompted the officers to approach Mr. Rowe's car. Upon approach, PC Gill testified that he smelled a slight odor of freshly burnt marijuana. This prompted him to ask for Mr. Rowe's license, for purposes of investigating him. It was then that Mr. Rowe asked if he could straighten out his car. PC Gill found that odd, and said no, wanting the driver's license first. It was then that, according to PC Gill, Mr. Rowe slowly started to move forward, turned a little bit to avoid making contact with PC Green, and then accelerated westbound toward Main Street.

[8] He testified that the car came within a short distance of PC Green, but that he would only be guessing as to how close. He did not testify that PC Green took any evasive action.

[9] He also testified that he would only be guessing as to the rate of speed at which the car continued and then turned right on Main Street, except to say that it would have been within the posted limit.

PC GREEN

[10] PC Green testified that she and her two partners were riding northbound on Sproule in an area that is known to police for having issues with people on the private property of others, prostitution, things taking place in back lots and drug use.

[11] She said their job is to "pay attention".

[12] Her testimony is that she and her colleagues approached Mr. Rowe's car and that he asked if he could park there.

[13] As the officers got closer, she could smell an odor of marijuana.

[14] She testified that her colleagues were closer to the car, and that she was at some distance away - approximately 10 feet, where she left her bicycle. She was not stationary the entire time; rather, she roved around within a few steps but essentially remained on the forward side of the car to make observations.

[15] She testified that when Mr. Rowe was asked for his driver's licence, everything then "happened so fast." His car went forward, and she pulled herself and her bike back away as his car proceeded between her and her bike, on one hand, and the curb on the other.

[16] She said that she was "kind of in shock," and that "the adrenaline was pumping." She could not estimate the exact speed at which Mr. Rowe drove. She testified that he then turned right on a red light without stopping.

[17] The three officers rode very quickly behind him and then to his home, having received information from dispatch.

[18] PC Green gave a relatively detailed description of the driver, including the appearance of a tattoo on the left side of his neck.

MR. ROWE

[19] Mr. Rowe testified to a very different set of facts. On his account, police approached him before he asked them about parking. He did so as he was inching forward, and then decided to leave once the officers were near his window. He was not asked for his driver's license and no officer was ahead of his car when he left the area. They were beside him and told him to stop. He drove off at a very low rate of speed, since the intersection was only 5 or 6 feet away from him at that time. He testified that he stopped at the red light before turning right, and then went home. He explained that he would not speed through a live intersection for fear of harming others or himself.

[20] He had initially been parked outside a salon in his car to enjoy the air conditioning, as he waited for his girlfriend.

[21] He testified that when he left, he had an intention to return later to pick up his girlfriend. He also testified that he did not know that police would follow him and attend at his home, and that as the situation changed, so did his intention.

[22] Mr. Rowe explained his actions. He believed that he had to cooperate with police once they asked for his driver's license; otherwise, he was free to go as he pleased. In this case, since he had done nothing wrong, he did not wish to remain there to have conversation with police officers.

[23] Underlying his actions and decisions that day was the fact that Mr. Rowe is someone who fears police as a general rule. While he acknowledges that there are "good cops" as well as "evil cops", he is not someone who wants to have interactions with any police officers. His attitude is the result of the fact that one of his uncles was shot and killed by police and another uncle had been tasered while being investigated. He also added that he weighs 120 lbs and stands approx. 5'6".

[24] While he did not refer to his skin colour in particular, the court notes that he is a young black male.

2: ANALYSIS

Dangerous Driving

[25] Section 249(1) contains its own definition of dangerous driving. The question is whether the Crown has proven that Mr. Rowe drove in a manner that was dangerous to the public. To answer this question, the Court must consider all the circumstances, when viewed objectively. It is the manner of driving and its attendant circumstances, and not the consequences (or absence of consequences), that matter to this inquiry. The difference between a mere departure from the norm – such as may amount to negligence – and a marked departure – such as could found criminal culpability – is a question of degree.

[26] Proof of the mens rea for this particular offence is based on a "modified objective" test. The question is whether the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the circumstances. An explanation such as sudden onset of illness could negative the mens rea. No such explanation is offered in this case. However, the modified objective test requires the court to take into consideration such circumstances as the state of mind of the accused at the time.

[27] I begin by observing the central principle of our criminal law that Mr. Rowe benefits from the presumption of innocence throughout the proceedings. The corollary to this principle is that the Crown bears the burden of proving Mr. Rowe's guilt beyond a reasonable doubt. That burden never shifts to Mr. Rowe.

[28] If the Crown is unable to do prove Mr. Rowe's guilt beyond a reasonable doubt, he must be found not guilty.

[29] I direct myself pursuant to R. v. W.D. (1991), 63 CCC (3d) 397 (S.C.C.), as follows:

a. First, if I believe Mr. Rowe's evidence, obviously I must acquit.

b. Second, if I do not believe Mr. Rowe's testimony but am left in reasonable doubt by it, I must acquit.

c. Third, even if I am not left in doubt by Mr. Rowe's evidence, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Rowe's guilt.

[30] As the Supreme Court of Canada has stated in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23, in a case such as this, which turns solely on credibility:

…the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

[31] The Crown argued that Mr. Rowe's evidence should not leave a doubt in the court's mind, much less be believed. He urged the court to find that Mr. Rowe's evidence lacked common sense, was internally inconsistent as well as inconsistent with that of the officers.

[32] Mr. Butler urged the court to find that Mr. Rowe's evidence raises a reasonable doubt. He also urged the court to find that the Crown had not met its burden due to the inconsistencies in the evidence of the officers.

[33] I begin with the evidence of the officers.

[34] PC Gill and PC Green have different accounts of why they approached Mr. Rowe's car. They also have different accounts of when they did so. According to PC Gill, they approached Mr. Rowe because he asked them a question about parking. According to PC Green, the reasons had more to do with the fact that Mr. Rowe was parked in a particular area of concern to the Peel Regional Police Service.

[35] PC Gill also testified that when Mr. Rowe began to leave the scene after asking if he could straighten up his car, he did so slowly and also turned to avoid striking PC Green.

[36] PC Green's evidence left the court with the impression that Mr. Rowe accelerated aggressively.

[37] PC Gill did not testify that PC Green took evasive action.

[38] The Crown urges me to place more weight on PC Green's evidence than that of PC Gill as it was more detailed. I decline to do so for a number of reasons.

[39] It is true that PC Green's evidence contained details - for instance, her description of Mr. Rowe and a tattoo on the left side of his neck. But I was not shown Mr. Rowe's tattoo in any way, and was unable to see if he had one as described as he sat to my left. Nor was I able to see a neck tattoo on him as he sat near the prisoner's dock during the trial. And, to be clear, he was not wearing a turtle neck sweater or any other item of clothing that one might have suspected was for the purpose of concealing a tattoo. Briefly put, I find the detail in PC Green's evidence in this respect of little assistance without knowing the truth of the matter.

[40] As for the issue of the rate of speed at which Mr. Rowe drove off, I am likewise not willing to prefer PC Green's evidence over PC Gill's. From my understanding of the evidence, PC Gill was close to the side of the car, and watched it drive forward to the point where it turned right onto Main Street. He was asked by the Crown about obstructions to his view, and stated that there were none. I find that his vantage point was as good as PC Green's, if not better, at least until the point at which the car reached PC Green's position.

[41] PC Gill was within an arm's length of Mr. Rowe when interacting with him. PC Green was a number of feet away – between 7 and 10 based on her description of the location of her bicycle and the fact that she was walking around within 3 feet of it or so. Also, I believe it accords with human experience that it is easier to for a person to determine the speed of a car when looking at it from the side than from the front.

[42] I would also add that PC Gill's evidence, while less detailed than PC Green's as to Mr. Rowe's appearance, was not devoid of detail. His evidence that the car was moving slowly and turned to avoid PC Green are details in my view. On a similar note, PC Green did not hear Mr. Rowe asking PC Gill if he could move his car, as PC Gill explained. This is a detail that PC Green did not relate to the Court.

[43] PC Green's evidence in chief was that everything happened very fast. She made the sound of a car revving to describe the action. She also testified during examination in chief that she had to pull herself and her bike out of the way to avoid being struck.

[44] In response to the Crown's questions, PC Green testified as follows:

When the vehicle moved forward, I had to pull myself and my bike away

I believe it would've struck me if I didn't

It went by at approximately arm's length from me

I believe it would've struck me if I hadn't pulled back

[45] It was not until cross-examination that PC Green acknowledged that Mr. Rowe had made a distinct effort to turn his car in an attempt to avoid coming into contact with her. In response to the question "Did you see car turn to avoid making contact with you?" PC Green responded "yes, the car turned to avoid me".

[46] I also note that PC Green did not hear Mr. Rowe ask if he could straighten his car.

[47] PC Green's evidence is inconsistent with PC Gill's in the following material ways:

1. Concerning the reason and timing for the initial interaction with Mr. Rowe;

2. Concerning the speed at which Mr. Rowe drove off.

[48] The fact that she testified to evasive actions whereas PC Gill did not may also constitute an inconsistency, albeit less direct.

[49] There is no doubt that PC Green was on high alert from the moment the interaction began. She was concerned about making observations and looking out for her partners. Mr. Rowe's departure shocked her and got her adrenaline pumping. It may be that in those circumstances, PC Gill's evidence is more reliable where it conflicts with PC Green's, given that he was well placed to make observations. It is certainly not less so.

[50] In the end, I find that the material inconsistencies between the two officers who were both in positions to make reliable observations significantly weaken the Crown's case.

[51] This takes me to the evidence of Mr. Rowe.

[52] Mr. Rowe, who has no criminal record, testified in an animated manner, at times laughing while at other times struggling to explain his thoughts. I did not find that he was lackadaisical, nor did I find that he was not taking the matter seriously. To the contrary, I find that he was trying to be very careful in his evidence and that his laughter, which was infrequent, came at a time when he was trying to explain an internal, subjective feeling he had concerning police or when he adamantly disagreed with a suggestion that was put to him.

[53] Mr. Rowe explained that his actions were the result of his fear and mistrust of police. This is based on what happened to his two uncles. Unfortunately, with those thoughts, Mr. Rowe turned what might have been a brief and uneventful conversation into a situation that ended up in his arrest at his home in circumstances that became very emotional and chaotic.

[54] The Crown urged me to find that his evidence defied common sense. I do not see it that way. Assuming that Mr. Rowe was fearful and anxious, I am not prepared to say that asking police a question, driving off slowly or stopping at a red light are nonsensical. First, when people are afraid, they do not always behave predictably. Second, I believe that – rightly or wrongly – persons feel safe from others in their car, particularly when it is moving.

[55] I am also not persuaded that Mr. Rowe was inconsistent as to his intention to return to pick up his girlfriend some time later. I understood his evidence to be that upon his departure, his intention was to do so. But the situation changed. Police gave chase, and ended up at his home to arrest him in front of his family. He had not predicted that. I believe him that his intention changed in these fluid circumstances.

[56] The fact that Mr. Rowe's evidence is inconsistent with that of the police, per se, cannot be a reason for doubting it – at least not when the police evidence is materially inconsistent or otherwise not accepted by the court. In this case, I have explained why the inconsistencies in the police evidence are problematic.

[57] I am free to believe some, all or none of a witness' evidence.

[58] In Mr. Rowe's case, I confess to having some difficulty believing all of his evidence. I am left wondering whether the smell of marijuana had something to do with his decision to leave that day. But that question was not put to him by either counsel and what I am left with is the evidence of the officers that they smelled a slight odor. No drugs were seized or observed at the scene.

[59] I am also troubled by the fact that almost none of Mr. Rowe's account, which differed drastically from that of both officers, was put to those officers by counsel in his cross-examination. The Crown quite rightly raises the concern that the officers were not treated fairly, contrary to the rule in Browne v Dunn. As a result, he asks me to draw adverse inferences against Mr. Rowe for these failures.

[60] In this case, I am unwilling to do so. I note that the rule in Browne v. Dunn is not an absolute rule. What is more, there are remedies short of drawing adverse inferences that are available, including seeking to recall witnesses. I refer to R. v. McNeill, [2000] O.J. No. 1357 (OCA).

[61] No such request was made by Crown counsel. More importantly, while many of the questions that Mr. Butler asked Mr. Rowe were not put to the officers, Mr. Rowe's answers were directly responsive to those questions. The relevance of this fact is that they were not answers that Mr. Rowe appeared to conjure up or add as he went along. As a result, I am inclined to find that Mr. Butler's failure to ask the officers those questions is a failure that rests with him. In this particular case, the consequences of Mr. Butler's approach should not be visited upon Mr. Rowe personally.

[62] Also, I have explained that I do not find Mr. Rowe's credibility to be perfect but nonetheless am of the view that it is capable of raising a reasonable doubt.

[63] I do not reject Mr. Rowe's evidence out of hand. Rather, I find that it raises a reasonable doubt in my mind concerning the manner in which he drove.

[64] I would add that on its own or in the context of Mr. Rowe's evidence, the police evidence does not satisfy me beyond a reasonable doubt that Mr. Rowe drove in the manner alleged by PC Green. I would also find that if he drove in the manner described by PC Gill, that driving, while unwise and possibly negligent, does not meet the level required for criminal guilt. In fact, it sounds very much like what we see on the roads every day: drivers driving through crosswalks while pedestrians are still crossing the road. That might constitute negligence, but it does not constitute a marked departure from the norm.

[65] In other words, I find that the Crown has not proven the actus reus in this case beyond a reasonable doubt. Therefore, Mr. Rowe is entitled to be acquitted of the charge of Dangerous Driving.

[66] As a result, it is unnecessary for me to determine whether Mr. Rowe's state of mind negatives the requisite mens rea in this case. What I will say is that Mr. Rowe's fear or distrust of police does not entitle him at each encounter with police to put police officers or members of the public in danger. Had this case been different – and then even in some very minor ways – he could very well have done so.

Released: March 31, 2014

Signed: Justice P.F. Band