Ontario Court of Justice

Date: 2018-12-17

Court File No.: Central East - Newmarket 4911-998-18-05256

Between:

Her Majesty the Queen

— AND —

Ahmed Hussein

Before: Justice P.N. Bourque

Reasons for Judgment

Released on December 17, 2018

Counsel:

• B. McCallion, for the Crown
• A. Newman, for the Defendant

BOURQUE J.:

Overview

[1] The defendant is charged with breach of recognizance (violation of house arrest) and a charge under 249(2), being a failure to stop for a peace officer as soon as was reasonable in the circumstances.

Kyle Parkes

[2] …is a York Regional Police officer who had his car parked on the shoulder of the 427 highway facing northbound. Officer Golemic was in another police cruiser and it was beside him.

[3] They saw a Nissan Altima with licence plate CEEV 200 driving past and they decided to follow it and check for sobriety.

[4] Officer Golemic went in front and they followed the vehicle to where the 427 Highway intersects with Zenway Drive. The Nissan Altima went through the green light turning left. The vehicle went westbound for some 400 meters and then stopped in the passing lane at a red light. The officer pulled to the left of the Golemic vehicle and moved into the left turn lane and went up beside the Nissan Altima vehicle. The officer said he got a good look at the driver and could see only the legs of the sole passenger in the vehicle.

[5] At the green light, they moved forward and the officer let the Nissan Altima and officer Golemic's car go through. The Nissan Altima went into the curb lane. The traffic was moving under the speed limit.

[6] Officer Golemic engaged his emergency lights. The defendant appeared to speed up but the officer could not estimate the speed. The officer saw another vehicle move onto the shoulder. The Nissan Altima then traveled between 100 and 200 meters until it got to Highway 50 and turned right. Highway 50 is an 80 kilometre an hour area road and the vehicle travelled between 300 and 400 meters before turning into a plaza. It then stopped after travelling about 100 meters in the plaza. The officer indicated that the total period of time from the activation of the emergency lights to the ultimate stopping of the vehicle was "seconds".

[7] The officer said he saw the driver getting out of the car and running into a nearby residential housing area. The officer followed but lost him going behind a townhouse and into a marshy area near 30 Davenhill Drive. The officer called for help and returned to the area where his car was parked. When he returned, he saw a person standing near the Nissan Altima. He heard from another officer that he had a man under arrest and when that man was brought to the scene, he identified him as the man who was driving the Nissan Altima. The man refused to identify himself.

[8] I note that the officer stated that he had his dash cam video operating at the time and he stated that he reviewed it soon after the event. The video was not put into evidence.

Adam Patola

[9] …is a York Regional Police officer with 9 years' experience. He heard Parkes over the radio at 12:28. The information gave a description of the person being sought. The officer went to the area and a man drove up in a car and said there was a man hiding in the bushes near his house. The officer followed the person to his house and the officer saw another officer with a man who fit the description that he was given. The officer had his gun drawn. The officer got out of his car and the person came out of the bushes and walked some 10 to 15 meters to the road and lay down as instructed. He was arrested at 12:40. The officer put the man in his cruiser and took him to the plaza where the Altima had stopped.

[10] The officer stated that the clothing of the defendant had green leafy items on it and was wet and soiled. The defendant got out of this clothing at the station but the officers did not keep it and threw it out.

[11] The person in his car refused to identify himself and simply stated "lawyer" and eventually gave his lawyer's name. This officer also had his dash cam video operating but it was not put into evidence.

Kyle Oster

[12] …is a York Regional Police officer of some 7 years' experience. He received a radio dispatch about officer in a foot pursuit and he drove to the area and stopped at a plaza where he saw a grey Nissan Altima parked with police cruisers nearby. He saw a black man looking into the Nissan Altima. He spoke to the person who gave him two names and the same date of birth. The officer gave the names but the Crown did not seek to have this evidence be tendered for the proof of the contents as it was hearsay.

[13] The officer said that after this, he heard from Officer Parkes that one of the names produced a result but the other name did not. The officer did say that he never looked at a mug shot of the person and could not confirm that this was the person whom was tied to the name.

Recognizance

[14] The Crown sought leave to file the recognizance that he says that the defendant was subject to. The Crown stated that he had finished his evidence as we were breaking for lunch. This application came as the first matter when we returned after lunch. The defence objected. I ruled that I would allow the Crown to re-open his case and file the document for these reasons:

(i) The Crown had indicated at the beginning of the trial that he was obtaining the recognizance which was attached to another information before the courts in this jurisdiction. In fact another information came to the court but it was not the one that had the recognizance attached to it. The defendant at that time did not concede that the defendant was bound by any terms of recognizance, but realized that there was such a recognizance in existence;

(ii) The information with the attached recognizance came into court while the Crown's case was proceeding;

(iii) The defendant was therefore fully aware of the existence of the document and was not misled by that;

(iv) The defendant objected to the reopening of the Crown's case but could not point to any specific prejudice to the defendant other than the fact that the filing of the document prevented the defendant from raising it as a defence, to one of the charges.

[15] As the Crown had alerted this issue at the beginning of the trial, and as I find there is no prejudice to the defendant's handling of this trial, I find that I will exercise my discretion and allow the Crown to re-open its case for the sole purpose of filing the recognizance as Exhibit 1 in this trial.

Count 1

Breach of Recognizance that He Not Be Out of His Residence Save for Certain Exceptions

[16] The defendant was found (at the least) in being in a marshy area in no proximity to his residence (the address is listed in the recognizance). There was no evidence whatsoever that he came within any of the stated exceptions. While I cannot find as a fact that the person in the car with the defendant was a prohibited contact person, I also have no evidence that the person was one of the stated sureties.

[17] I therefore find the defendant guilty of the offence of being in breach of his recognizance pursuant to section 145(3) of the Criminal Code.

Count 2

July 2, 2018 – Fail to Stop by Peace Officer as Soon as Was Reasonable in the Circumstances

[18] As per the decision in R. v. Kulchisky, 2007 ABCA 110 at para 4, the essential elements of the offence are as follows:

• The accused must be operating a motor vehicle.
• A peace officer must be pursuing the accused.
• The evidence must establish that the accused knows a police officer is in pursuit.
• The peace officer must be operating a motor vehicle.
• The accused must fail to stop his vehicle as soon as reasonable in the circumstances.
• The accused must have no reasonable excuse for his failure to stop.
• The accused must fail to stop "in order to evade the peace officer."

[19] These being the essential elements of the offence, I must be satisfied beyond a reasonable doubt about all of these elements.

[20] With regard to the first element, I am satisfied that the Crown has proven that the defendant was the operator of the motor vehicle. Officer Parkes identified the defendant as the driver of the car by coming up beside the vehicle and then after he was returned to the scene he made an identification at that time. He then identified the defendant in the witness box. There was also the evidence of the fact that he was found near the scene within 13 minutes of leaving the vehicle (27 – 40). He matched generally the description that officer Parkes radioed at the time he asked for assistance.

[21] With regard to the second element, and the fourth element, I am satisfied that a police officer was pursuing the accused and he was in a police cruiser. I will comment below on more details of that "pursuit".

[22] With regard to the third element, I am satisfied that at some point, the defendant knew that the police were pursuing him. Where exactly that knowledge came to the defendant, I will comment below.

[23] With regard to the fifth element, I must find that the defendant did not stop his motor vehicle as soon as is reasonable in the circumstances. To decide this I find the following as fact:

(i) The first time that any officer activated his emergency lights was between 400 and 600 meters of where he actually stopped. I also find that from the first emergency lights to the actual time of stopping was within "seconds" of the turn onto Highway 50 and within "seconds" of that turn to the point of stopping;

(ii) Highway 50 has a speed limit of 80 kilometres an hour;

(iii) When the emergency lights went on, I do not know whether the officer's car (Officer Golemic) was immediately behind the defendant. The sound was activated sometime later but we do not know when it was activated. I therefore do not know the time that the defendant became aware of the police somewhere behind him. I believe it was before his vehicle came to a stop, and probably after making the turn onto Highway 50, but beyond that I cannot say;

(iv) Officer Park put on his lights and sound after officer Golemic. Officer Park could not be precise as to where and when;

(v) I cannot find that there was any appreciable increase in the defendant's speed. The officer indicated that the defendant was moving with traffic and the traffic was slower than the speed limit. He said that he sped up but did not know how fast and could give no estimate other than saying it was over the speed limit;

(vi) There was nothing about the defendant's driving at any time that would cause the police to charge him with dangerous driving. There was no evidence of failure to signal turns. With regard to the going into the plaza, the officer said it was fast but pointed out that he did not cause any potential harm to any persons (or property) in the plaza;

(vii) Once he stopped in the plaza he left the automobile and quickly moved away which led to a police chase on foot.

[24] In coming to these findings of fact, I am cognizant that some of these facts may have been established if the dash cam video of any of the police cruisers (there were two) were not put in evidence and apparently not disclosed to the defence. There is no requirement that these videos be in evidence but having them could have been of assistance to me in coming to any number of factual conclusions.

[25] After making these findings, I cannot really be in a position to be convinced beyond a reasonable doubt that the defendant did not stop his vehicle "as soon as is reasonable". He stopped his vehicle at about 400 meters and within seconds from the point he could possibly been aware that the police were following. He stopped in the plaza.

[26] With regard to the sixth element, having been unable to be satisfied beyond a reasonable doubt about the fifth element, that also leaves me with a reasonable doubt about this requirement. He did stop.

[27] With regard to the seventh element, the Crown must show that he did not stop in order to evade the police. While he definitely left his car and proceeded on foot and there is a clear inference that he did so in order to evade the police, it does not necessarily follow that he was evading the police while he was operating the motor vehicle. The fact of leaving the vehicle and proceeding on foot can lead to an inference that he had the intention to evade the police while he was operating the motor vehicle, it is not the only inference, and in any event the shortness of the time that the police were following does not elevate this inference to certainty.

[28] I therefore am not satisfied beyond a reasonable doubt that the defendant is guilty of the offence under sec 249.1(1). He will be acquitted of count 2.

Released: December 17, 2018

Signed: "Justice P.N. Bourque"