Court File and Parties

Ontario Court of Justice

Date: December 8, 2020

Court File No.: 19-1077

Between:

Her Majesty the Queen

— and —

Kenneth Lee Akey

Before: Justice Robert S. Gee

Heard on: February 3, 5, 6 and 7, 2020

Reasons for Judgment released on: December 8, 2020

Counsel:

• A. Falls, counsel for the Crown
• O. Ayoola, counsel for the accused

Introduction

[1] On January 11, 2019 an incident took place on the Six Nations Reserve, not far from the City of Brantford. The incident was between the complainant, Tyeller Powless and the accused Mr. Akey. It allegedly involved several aspects including the firing of a pellet gun by the accused at the complainant, chases in motor vehicles by the involved parties as well as the police, and an allegation that the accused forced his way into a house to hide.

[2] As a result of these allegations, Mr. Akey was charged with five offences; dangerous operation of a conveyance contrary to s. 320.13(1) of the Criminal Code, failing to stop after being involved in an accident contrary to s. 320.16(1) of the Criminal Code, flight from police contrary to s. 320.17 of the Criminal Code, being unlawfully in a dwelling house contrary to s. 349(1) of the Criminal Code and last, carrying an imitation weapon, that being a loaded pellet gun for the purpose of committing an offence contrary to s. 88 of the Criminal Code.

[3] The trial on these charges took place over four days on February 3, 5, 6, and 7, 2020 and judgment was scheduled to be delivered on April 3, 2020. The COVID-19 pandemic intervened and the release of this judgment was delayed as a result. I can assure all those involved in this matter that the delay in rendering judgment has not had any affect on my decision.

[4] Before getting into a fulsome analysis of the evidence, the charge of unlawfully in a dwelling can be quickly dealt with. In order to obtain a conviction, the Crown would have to satisfy me beyond a reasonable doubt that the building in which Mr. Akey attempted to hide met the definition of a dwelling house in s. 2 of the Criminal Code in that it was kept or occupied as a permanent or temporary residence. The evidence in this case did not support that and the Crown all but conceded the same. The evidence at trial demonstrated that though the building may at one time have been a dwelling house, it was no longer. It was at the time of these events a house that was unoccupied, insecure, and apparently abandoned. In these circumstances, I cannot be satisfied it meets the definition of a dwelling house and that charge will be dismissed.

[5] The same cannot be said in relation to the rest of the charges. The evidence against Mr. Akey supporting these charges was daunting, bordering on the overwhelming in many respects. As such the balance of these reasons will explain why findings of guilt will be made on the remaining four charges.

Facts

[6] The following are the facts as I have found them. My findings as to what happened this day is based on the evidence I accept. My reasons for believing or rejecting the evidence of the various witnesses who testified will be discussed further in these reasons.

[7] Tyeller Powless was on his way to work when encountered the accused who started following him. According to Tyeller[1], this was not the first time the accused had followed him; it had happened several times before. Since this was not the first time this had happened, while he was being followed Tyeller called his father, Brian Powless to let him know that it was happening again. Eventually Tyeller missed a turn and was blocked in by the accused who got out of his truck and started shooting a pellet rifle at him. Brian was still on the phone with Tyeller and heard the shots being fired. Tyeller indicated he was shot in the upper right chest area. As he was left with nothing more than bruising and as the damage to his truck from the shots was relatively minor, Tyeller surmised Mr. Akey was shooting him with a pellet gun. This belief was confirmed later as Tyeller stated he said he found pellets in his truck.

[8] After several shots were fired at him by Mr. Akey, Tyeller got back in his truck and sped away. As a result of Tyeller calling him, Brian was trying to locate him in his own truck. Just after getting away, Tyeller and Brian met on the road nearby. They knew the direction Mr. Akey had went following the incident so they followed him in their own vehicles. Eventually Tyeller and Brian became separated with only Tyeller following Mr. Akey on the same road.

[9] From this point on, Mr. Akey's vehicle was being pursued and/or followed in an area either on the Six Nations Reserve or in Brant County just off but close to the reserve. As well, there apparently was a Native protest planned for that day in this area. In anticipation of this, the Brant County road department had been setting up roadblocks at various intersections in the area and the OPP had a significantly larger than normal presence in the area. Brian had also called 911 and reported his son being fired upon to the police. This report had already been broadcast out to the OPP in the area that morning. The police were told to be on the lookout for a white pick-up with a blue lit back licence plate.

[10] This radio dispatch had been heard by Constable Scott Deschamps and his partner Constable Andrea Watt who at approximately 6:30 am, pulled over at the intersection of Old Greenfield Rd. and Cockshutt Rd. where a roadblock had been set up. Constables Watt and Deschamp were in a fully marked Ford F250 diesel pick-up truck. Not long after their arrival a white pick-up approached from Old Greenfield Rd. to the intersection at Cockshutt Rd. Constable Deschamp exited the OPP vehicle and spoke to the driver of the truck. The driver who was later determined to be Mr. Akey was calm, stated he was on his way to work as a security guard and showed Constable Deschamp his security vest. Given this Constable Deschamp did not suspect at this time Mr. Akey was the wanted person referred to in the broadcast so he allowed the truck through and it turned northbound on Cockshutt Rd. As Mr. Akey turned north on Cockshutt Rd. Constable Watt noticed it had a blue lit back licence plate. As well, Tyeller pulled up at the same time and yelled to Constable Deschamps that the white pick-up that had just left was in fact the one that had shot at him.

[11] Constable Deschamp jumped back in the OPP vehicle and they headed north on Cockshutt Rd. after Mr. Akey. Constable Watt was driving, and she activated the truck's roof lights and sirens. At this point though, Tyeller had proceeded onto Cockshutt Rd. ahead of the OPP. Mr. Akey continued northbound until River Rd. where he turned right. As this happened, Tyeller pulled over to allow Constables Watt and Deschamp to pass him. Constable Watt testified she got within three car lengths of Mr. Akey with her roof lights and sirens fully operational and paced him at 150 km/h. Another OPP cruiser joined the pursuit and Constable Watt allowed that cruiser to take the lead in the pursuit as it was difficult for the F250 she was driving to go that fast. The speed limits on the roads where this pursuit took place were either 80 km/h or 60 km/h on some of the more rural county roads.

[12] Due to the speed, Constables Watt and Deschamps backed off. The other OPP cruiser took over the pursuit. It as well had its emergency equipment activated. For a period they attempted to follow the OPP lights from a distance but eventually were only being updated through radio dispatches. An OPP helicopter was also in the area and continued to update the OPP communications centre of Mr. Akey's location. This in turn was being broadcast to the OPP in the area through their police radios.

[13] Brian and Tyeller both wanted to know the outcome so both tried to keep the police pursuit in sight. Given the speeds they were not always able to. At one point, Brian found himself at the intersection of Newport Road and Second Line. This is described as a "T" intersection as Newport Road ends where it meets Second Line. Brian noticed Mr. Akey coming on Second Line toward Newport Road so he positioned his truck across Newport Road, intending to block Mr. Akey from turning onto Second Line. Despite this, Mr. Akey did not stop and went off the road and into a small ditch in order to get around Brian's truck. In doing so the driver's side of Mr. Akey's truck struck the driver's side of Brian's truck and scraped down the side toward the back of Brian's truck. Brian estimated the speed Mr. Akey was going when he struck him to be 20 to 30 km/h as he had to slow to make the turn. Brian was uninjured but the damage to his truck cost approximately $3000.00 to repair.

[14] After this, Brian moved his truck to allow the police to continue after Mr. Akey as they were not far behind. Tyeller also went through as he too was following. Brian as well continued down Second Line in the same direction. The OPP cruiser first behind Mr. Akey continued to have its roof light and siren activated. By the time Brian left the intersection, he had to speed up to approximately 160 km/h to try to catch up. Eventually Mr. Akey turned onto Bateman Line which is a gravel road. Given the amount of dust created by the vehicles ahead, Brian slowed down and did not try to keep up.

[15] The pursuit continued on Bateman Line. At the intersection of Bateman Line and First Line, OPP Constable Jay Blackburn and his partner deployed a tire deflation device across the road. They observed the pursuing cruiser's emergency lights from a distance and watched as Mr. Akey's truck drove over the spike belt at a high rate of speed. Constable Blackburn then immediately pulled the spike belt from the roadway before the OPP cruiser could drive over it. Mr. Akey did not stop after driving over the spike belt but continued at a high rate of speed.

[16] After losing sight of them, Brian continued to drive the roads in the area to see if he could once again locate the pursuit. Eventually, he saw Mr. Akey again coming toward him and he passed him going the other way. At this time the police were still following Mr. Akey but had backed off somewhat and turned off their roof lights and sirens. Brian turned around and followed again ultimately onto Townline Road. Mr. Akey eventually turned off into the driveway at 7360 Townline Road.

[17] This is the house of Samantha Miller and her common law husband. Mr. Akey is known to the Millers as he is a friend of Ms. Miller's stepson. Ms. Miller had been up that morning about to get her kids ready for school when she heard a loud vehicle on the road and then coming up her driveway. She described the sound it made like a snow plow scraping the road. Mr. Akey's truck was what was making the noise. The spike belt had worked as designed as the front driver's side tire of Mr. Akey's truck was completely gone and he was driving on what was left of the rim.

[18] At first Ms. Miller did not know who was in the truck. It came all the way up her driveway and parked around back behind their garage. She yelled out that someone drove up their driveway and she and her daughter Brittany Miller ran outside. By this point Mr. Akey was out of the truck and coming toward the house. Brittany Miller recognized him and told her mom it was Ken, her brother's friend. Samantha Miller heard Mr. Akey say he was being chased. Mr. Akey then threw his bullet proof security vest to Brittany, told her he would be back for it and to "tell them it was a black guy." He then left, running through a cornfield.

[19] Gord Hill and Brayden Hill are members of the Six Nations Police who took part in the pursuit. They indicated they first received the report of the shooting at approximately 6:27 am this day and they left the station at that time to assist with locating the suspect. Eventually they joined the pursuit and were the last of the police vehicles that were following Mr. Akey after he ran over the spike belt. According to Gord Hill, there were three OPP vehicles and one other Six Nations Police vehicle ahead of them, all following Mr. Akey with their emergency equipment activated.

[20] The police arrived at the Miller residence within minutes of Mr. Akey. Since the OPP helicopter was still providing updates as to Mr. Akey's location, after he fled a contingent of Police Officers gathered to conduct a search on foot. Constable Blackburn indicate he arrived at the Miller residence at about 7:10 am., awaited the arrival of a K-9 officer, and the police set off on foot at about 7:30 am. Mr. Akey continued to flee and was eventually located hiding inside the abandon house referred to earlier and he was arrested at approximately 8:05 am.

[21] Brody Jonathan of the Six Nations Police took photographs of Mr. Akey's truck that showed the destroyed left front tire as well as damage to it on the back bumper. Officer Jonathan indicated he observed purple paint markings on the rear quarter panel near the lights which would be consistent with the paint colour of Brian's truck. The rear bumper of Mr. Akey's truck on the left or driver's side, was also bent back and outward leaving it damaged in a manner that could be consistent with his truck scraping down the side of Brian's truck as Brian described it. Also photographed was the security vest Mr. Akey left with Brittany Miller. With the vest was a badge, handcuffs, and a baton with police markings on it.

[22] The vehicle pursuit lasted about 35 minutes, from 6:27 am when the call came in to just after 7:00 am when Mr. Akey abandon his truck at the Millers' and fled on foot. The vehicle pursuit covered a considerable distance over several roads. The search for Mr. Akey on foot lasted about an hour. In total, approximately 90 minutes passed from when the call came in until Mr. Akey's arrest and resulted in a sizeable police response and use of police resources.

Mr. Akey's Version of Events

[23] Mr. Akey chose to testify at trial. His version of events was significantly different from that of the Powlesses' and the police. According to Mr. Akey, he had gotten off work at 6:00 am that day. It was pay day and he received his pay in cash. While on his way home he stopped on the road to count his pay and to divide it up to pay his bills. While he was stopped counting it, a person unknown to him in a dark truck pulled beside him, threw something at his left front bumper and then used his hand to make a thrashing motion across his throat that Mr. Akey interpreted as a threat to cause him harm.

[24] Frightened by this, Mr. Akey claims to have driven off but the person who he later came to understand was Tyeller, chased after him. He stated Tyeller continued to chase him in an aggressive manner and was very close behind him. He continued to chase him and eventually Mr. Akey came upon the roadblock where he encountered Constables Deschamp and Watt. At this point he no longer could see Tyeller behind him, so he assumed he had lost him. As such when he spoke to Officer Deschamps he made no mention of the threat Tyeller had made to him nor that Tyeller had been chasing him in an aggressive manner. He was let through the roadblock but very shortly thereafter noticed Tyeller chasing him again, by this time aided by another vehicle that he later determined to be Tyeller's father, Brian. He continued to try to escape from Tyeller and Brian and thought of heading home but then decided to head to the house of his friend. In the course of doing so he stated he went through two more roadblocks. At each of these roadblocks he was merely waived through by police, so he never told them about the chase.

[25] At one point he stated he came upon Brian on the road in front of him. According to Mr. Akey a collision occurred between them when Brian reversed his truck into his. After the collision he did not stop but continued until he got to the house of his friend, that being the Miller's house. By then his truck had the left front tire missing and he was driving on the remainder of the rim. This damage was caused Mr. Akey thought, when he ran over a pot hole in the road. When he got to the Miller's he handed them his vest and asked them to hold it as it had his pay in the pocket and he thought it would be safe with them. He then took off on foot as he thought the Powlesses were still chasing him. At some point his knee was hurting so he went into the unoccupied house to rest.

[26] Mr. Akey stated at all times he was in fear for his life. His actions that day from the manner he drove, to not stopping after the collision, to running on foot from the Miller house were all due to his belief his life was in danger were he to be caught by the Powlesses.

[27] At no time was he fleeing from the police. In fact, according to Mr. Akey, the police were never in pursuit of him. The only persons pursuing him, both in their vehicles and then on foot, were the Powlesses. His only direct encounters with OPP that day were when he went through the roadblocks, the first where he spoke to Officer Deschamp and the other two where he was simply waived through. The only other time he saw police was one other Six Nations Police officer in a cruiser going the opposite direction he was.

[28] He never had a pellet gun or shot at Tyeller, he never chased Tyeller or blocked him on the road. He only drove as he did due to his fear while being chased by the Powlesses and his excuse for not staying at the scene of the accident was again due to his extreme fear.

Analysis

[29] In this, as in all criminal cases, the burden is on the Crown to prove the charges beyond a reasonable doubt. This burden never shifts. Proof beyond a reasonable doubt sets a very high bar. It is the most onerous standard in our legal system and is much more onerous than proof on a balance of probabilities that is applicable in civil cases. Finding that an accused is probably or likely guilty is not enough; to meet the standard of proof beyond a reasonable doubt, one must be sure of the accused's guilt based on the evidence before the court. See R. v. Lifchus, [1997] 3 SCR 320.

[30] In R. v. W.D., [1991] 1 S.C.R. 742, the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives different version of events from the complainant or other witnesses.

[31] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not by that fact alone, entitled to win.

[32] As well, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief, to simply conclude the other side's competing version must be true or accurate.

[33] W.D. tells me to approach the case in this manner. First, I should ask myself if I believe the accused or any evidence presented at trial that is inconsistent with guilt. If I do, then the accused is entitled to an acquittal.

[34] The second part of the W.D. framework comes into play if I conclude I do not believe the accused or the evidence inconsistent with his guilt. If I do not, in order to remain focused on the Crown's burden, I should ask if I am still left in a reasonable doubt by it. At this stage I must ask if there is a basis to reject this evidence outright. If I find that even though I do not accept this evidence, I am still unable to reject it as either untruthful or unreliable, then I would have to find I am left with some doubt. The accused is entitled to the benefit of that doubt and is again entitled to an acquittal.

[35] It is only after I have found that I do not believe the accused or the other evidence inconsistent with guilt, and this evidence does not leave me with a reasonable doubt that I should move on to the third part of the W.D. framework.

[36] This part of the framework reminds me that even if I have not believed the accused's evidence and have in fact rejected it in its entirety that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I must be convinced of the accused's guilt beyond a reasonable doubt based on the evidence I do accept.

[37] Evidence of any witness, including that of an accused, can be reject for many reasons. Some of the most common or traditional reasons are that the testimony given in court conflicts with statements made by the witness at prior times. This could be statements given to police, or things the witness said to others out of court. The testimony could be rejected because it changes as it's given. For instance, when confronted with things in cross examination the testimony may change from what was given earlier. When the evidence defies logic or common sense, this is also a basis for its rejection.

[38] When the testimony of an accused does not have one of these common or traditional flaws, it is still capable of rejection. This is what the Court of Appeal confirmed in R. v. J.J.R.D., [2006] O.J. No. 4749. In that case the Court stated an accused's testimony can be rejected because it conflicts with other evidence that is accepted. The court stated the principle in par 53 as follows:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[39] After considering the evidence in this case, I find I do not believe the testimony of Mr. Akey. Not only do I not believe it after considering it carefully, I find that it does not leave me in a state of doubt.

[40] I find that Mr. Akey is capable of being a reliable witness. He seemed articulate and well educated. He presented as a hard working, loyal, and supportive partner to his fiancé and father to their children. There were no apparent issues with his ability to observe and recall the events of the day. Nor was there any evidence his memory of them may have been clouded by the consumption of drugs or alcohol or for any other reason.

[41] The reason Mr. Akey's evidence is rejected is because it is not credible; it is I find simply incapable of belief. It defied common sense, was far fetched, and too often contained ad hominen attacks on others involved. Also, in almost every respect, it conflicts with the other credible evidence I do accept.

[42] For instance, Mr. Akey's version is that he was being chased by the Powlesses for a prolonged period and he feared for his life. However, at no time during this did he tell the police or seek their assistance notwithstanding several opportunities to do so. He never mentioned it to Officer Deschamps even though he spoke to him shortly after the incident started, he never stopped at either of the other two roadblocks set up by the OPP he says he went through, nor did he try to flag down the other Six Nations Police officer he saw in the cruiser.

[43] Even if there was some truth to his testimony that he did not tell the police because he did not want to be labelled a "rat" or "snitch" I find that if he really thought his life was in grave danger and continued to be over such a prolonged period, he would take advantage of the presence of the police when he encountered them. Additionally, he did not ask the Miller's to call for help for him, either from the police or otherwise which he likely would have, if he felt his life was in danger as he described.

[44] As well, this explanation rings hollow when one considers Mr. Akey had taken courses such as use of force, note taking, investigative techniques and was employed as a security guard at the time, an education and form of employment that is in many respects police like.

[45] Another aspect of his testimony that does not make sense is why he left his security vest, baton, and handcuffs with the Millers when he fled on foot. Common sense tells us that if he thought he was outnumbered and being chased and as a result feared for his life, he would not abandon items he was trained to use and could rely on to protect himself from harm and use to defend himself. His explanation that he was worried he would be found liable if he hurt someone with them simply defies belief given the context he asked the court to believe.

[46] One further aspect of his testimony that defies belief is his testimony that he did not realize he had driven over a spike belt. His evidence was he thought he at some point ran over a pot hole and it caused his tire to go flat. However, he did not simply have a flat tire, as was evident from the pictures filed as exhibits at trial, his tire was shredded and the rim itself was worn down to the inner spokes as a result of the continued driving on it.

[47] What also reflected negatively on Mr. Akey's testimony was his habit to make baseless attacks on the character of those involved. When asked if he ever met Brian before, he said his only other time he ever encountered him was a time when he was with his father who went to buy drugs from him. He was also asked why he did not simply leave his cash with the Millers and take his vest and tools with him. His explanation was that the money was in the pocket and he did not want to leave it directly with them as Samantha Miller was addicted to drugs. His distrust of the Six Nations Police he stated also stemmed in part form the fact that he knew a report had been made to the Six Nations Police of inappropriate sexual contact by one of their officers in relation to a minor, but the Six Nations Police did not do anything about it. I would also note that none of these allegations were ever put to the witnesses in cross examination. Brian Powless was not asked if he sold drugs to Mr. Akey's father, Samantha Miller was not asked if she had a drug addiction and none of the three Six Nations Police Officers who testified were asked if their force ignored a serious allegation of sexual impropriety by one of their own against a minor.

[48] This is more than enough I find to reject Mr. Akey's evidence, but I do so as well because it conflicts with the other evidence I do accept. That is the evidence of the witnesses who testified on behalf of the Crown. All the police officers who testified did so in I find an honest and straight forward manner. Their testimony was fair and balanced, internally consistent, not contradicted by any physical or other evidence, except Mr. Akey's, and all held up well to cross examination. Additionally, their evidence all made sense and was consistent with each other. The evidence of both Samantha and Brittany Miller was also believable. Although not as important to my determination of Mr. Akey's guilt or innocence it did provide context to the events and was another consistent piece of the Crown case. They both struck me as honest and genuine, notwithstanding they knew Mr. Akey well even before these events, and I accept their evidence.

[49] This leaves the evidence of Tyeller and Brian. After carefully considering their evidence, I find I believe them too. Starting with Tyeller, he as well came across as an honest and straightforward witness. I did not find any sense in his evidence that he was embellishing his allegations or attempting to deceive in any way. The defence argued he was inconsistent on his evidence as to where he was shot, in the shoulder or chest, but I find he was not inconsistent in this regard.

[50] The defence also argued he was not credible because he stated he did not know Mr. Akey but said he knew where he lived and would see him there. The defence argument in this respect was somewhat unclear but Tyeller's evidence in this respect was not. His evidence about this aspect was clear, consistent and believable. He stated this was not the first time Mr. Akey had followed him in his truck. It had happened several times in the months before and naturally was concerning to Tyeller as Mr. Akey was unknown to him. He was concerned enough about this behaviour that he had told his father about it and his father advised him to call him if it was to happen again. This is why Tyeller called Brian on this day.

[51] Tyeller testified that even though Mr. Akey was not known to him, he had coincidentally seen Mr. Akey's truck parked in a driveway that he assumed was his house. He saw the truck there on several occasions and saw Mr. Akey himself outside the house too. This is the context in which he said he knew of Mr. Akey. He was consistent with this narration and it makes sense. I believe him in this regard and find it doesn't detract form his credibility.

[52] It is for these reasons I find Tyeller to be a credible witness. He was consistent internally and externally; his evidence was logical and comported with common sense. There was nothing in his behaviour that day or his actions that I find makes him less believable. This had happened before with Mr. Akey. Tyeller was sick of it and he was not going to take it anymore. He dealt with it in a reasoned and measured approach, he called his father, and involved the police.

[53] I feel the same for Brian's evidence. He was consistent internally and externally. His evidence was consistent with Tyeller's. I did not detect any attempt by him or Tyeller for that matter to tailor their evidence to fit the others. Brian also withstood cross examination and I find his actions that day also were consistent with what a parent would do in the circumstances and was measured response to the incident. He phoned the police to enlist their help and other than the attempt to block the road, he stayed out of their way and let them handle the situation. I believe his evidence as well.

[54] The defence also urged me to question the credibility of the Powlesses for other reasons. The fact that no pellet gun was located should according to the defence detract from the Powlesses version of events. As well, the police did not take photos of Tyeller's truck to show the damage he claimed the pellets inflicted nor did they seize the pellets Tyeller said he found in the truck after. Also, no pictures of the damage to Brian's truck were taken either.

[55] I do not however find that I disbelieve Tyeller that a pellet gun was fired at him by Mr. Akey for the reason none was found nor for the fact pictures were not taken or pellets seized. In other words, even though no pellet gun was found, or pictures taken, or pellets seized, I still believe Tyeller. Like I noted my belief stems from him being a credible witness whose testimony I accept. The fact that no pellet gun was found does not detract from this. As noted from the facts, there were times when Mr. Akey was driving and not being followed closely. The first was immediately following Tyeller's escape from him on the road after the shots were fired. Tyeller left to look for his father and only sometime after did they go after Mr. Akey. Also, Brian testified that when he next saw Mr. Akey driving after the collision the police had backed off and were following at a distance without their emergency equipment activated. A final time was when Mr. Akey pulled into the Millers'. He had time to park, get out of the truck have a brief conversation with Samantha and Brittany Miller, toss them the vest and run before the arrival of the police. Obviously from this, the police at this time as well, were not following immediately behind Mr. Akey. Given this, it is clear there would have been opportunities when Mr. Akey was not under close scrutiny to dispose of the pellet gun.

[56] Furthermore, as noted I believe Brian's testimony. He testified that when he was on the phone with Tyeller when he was being blocked in by Mr. Akey, he could hear the shots being fired. This is another reason I accept that Mr. Akey used a pellet gun in the incident even though one was not located.

[57] The same applies to the lack of pictures of Tyeller's truck, the lack of pellets seized from it and the lack of pictures of Brian's truck. Tyeller and Brian do not control the police investigation. The fact the police failed in their investigation to gather this evidence does not detract from their credibility. There was nothing in the evidence at trial to indicate that Tyeller or Brian were not cooperative with the police or that they would have prevented the police from gathering this evidence. Although it may have made the analysis more straightforward had the police taken these investigative steps, the fact they did not do so here does not lead me to reject or disbelieve the evidence of the Powlesses.

[58] There was one other argument made by the defence why I should reject the evidence of the Crown. This had to do with the OPP helicopter that was monitoring the pursuit this day. In submissions, defence counsel alleged the helicopter took video of the pursuit, the Crown had the video in their possession and failed to lead it at trial. Defence asked me in the circumstances to draw an adverse inference against the Crown. He argued I should infer that the Crown failed to lead it because the video would have failed to demonstrate the police were in pursuit of Mr. Akey.

[59] There was no evidence before me about this video or what it showed. Defence counsel claimed it existed and he had a copy that was provided by the Crown through the normal disclosure process. Neither Crown nor defence made any attempt to lead this video during their respective cases even though it would have been open for either to do so. It seems to me the failure by both sides to lead any such video were tactical decisions made by counsel during the course of trial. In these circumstances I find it would be inappropriate of me to draw any inference from the failure by the Crown to have the video played during trial as sought by defence counsel.

[60] It is for these reasons I accept the evidence of these witnesses, that being the Powlesses, the police, and the Millers. I accept the evidence of these witnesses too, beyond any reasonable doubt. This is why I have narrated the facts as I found them in the earlier part of these reasons. This also forms the other basis for why I have rejected Mr. Akey's testimony; it is inconsistent with the evidence I have accepted. In short, I believe Mr. Akey stopped Tyeller as Tyeller said, he fired upon him with a pellet gun then drove in the manner described including over the spike belt and then fled on foot and hid, because he knew fully well the police were pursuing him.

[61] Just because I have rejected the evidence of Mr. Akey and accepted the evidence of the Crown beyond a reasonable doubt, does not mean findings of guilt necessarily follow. As noted in W.D. above, at this stage I still must ask myself if the evidence I accept proves the charges beyond a reasonable doubt. In this case I find that the evidence I accept does prove Mr. Akey's guilt beyond a reasonable doubt on the four remaining charges he faces.

Dangerous Operation of a Motor Vehicle

[62] The first charge Mr. Akey is facing is that the operated his motor vehicle in a manner dangerous to the public. In order to convict on this charge, the Crown must prove first that the manner of driving was objectively dangerous having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. See: R. v. Beatty, 2008 SCC 5, par. 43 and R. v. Roy, 2012 SCC 26, par 33.

[63] Proving the accused was driving in an objectively dangerous manner is not all the Crown has to prove. The Crown must also prove that the accused had the requisite mental state. To do this the Crown must prove the 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. See: Beatty, at par. 48 and Roy, at par. 36.

[64] In order to determine if the Crown has met its burden and proven the blameworthy mental state of the accused, I should ask myself two questions. First, considering all the circumstances, would a reasonable person have foreseen the risk to driving in such a manner and take steps to avoid it if possible. If a reasonable person would have foreseen the risk, the second question I should ask is, was the accused's failure to foresee the risk and take steps to avoid it if possible, a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. See: Roy, at par. 36.

[65] Applying this test ensures only the most egregious conduct will attract criminal sanctions. Driving is an inherently dangerous activity. The law in this area seeks to distinguish between behaviour that is grounded in carelessness or negligence in which a civil fault standard may apply and behaviour on the continuum that is such a marked departure from the norm that it should attract criminal sanctions.

[66] In this case, there was not much evidence about the actual amount of traffic on the roads that day but there was plenty of evidence about what was happening in the area that day and what may have been expected on the roads. There was evidence that a Native protest was planned for this area and Brant County road crews were out setting up roadblocks for this purpose. As well, Samantha Miller indicated she was up getting her kids ready for school. Given all this, it would be more than reasonable to expect significant users of the roads in this area that day. One likely could have expected to encounter, road crews setting up roadblocks at intersections, police stationed at these roadblocks, protesters on the roads, school buses travelling their routes picking up school aged children waiting at the roads and generally people in their vehicles heading to work to start their day.

[67] Considering all the circumstances, I find that the manner which Mr. Akey drove from when he first encountered Tyeller and while being pursued by the police until he abandoned his truck at the Millers' was objectively dangerous. To start, this was not a brief period of driving; the driving conduct under scrutiny here lasted for approximately 35 minutes and covered a significant area on several different roads. Mr. Akey drove at excessive speeds far above posted speed limits and at some point, up to at least 150 km/h. He struck another vehicle and continued without stopping to check if his vehicle sustained damages that may have put him or other users of the roads at risk. He drove over a spike belt and continued to drive after his tire has been shredded and the steel rim worn down to the spokes. Driving in such a fashion is objectively dangerous, given the circumstances noted above that could have been expected in the area that day.

[68] I next need to determine if Mr. Akey had the requisite mental state. To do so I must ask myself the two questions posed above. First, when I ask if a reasonable person would have foreseen the risks in driving like Mr. Akey did and would they have taken steps to avoid those risks, the answer is an obvious yes. The length of time, the speeds, the collision and continuing to drive after it and the driving on the severely damaged tire and rim in the area and at the time Mr. Akey was, would create risks to others that any reasonable driver would easily see and takes steps to avoid. Other users of the roads do not expect people to be driving at such speeds so they maty pull onto the roadway when not safe as they are not used to judging other vehicles going that fast. As well, the chance of losing control of your vehicle at those speeds is greater. Continuing to drive a vehicle that was in a collision or driving when your tire is shredded, and the rim has been worn down also would increase the risk of losing control of your vehicle and would thereby put others on the road at risk. All these types of risks would be obvious to any reasonable person.

[69] How to avoid these risks would also be obvious to any reasonable driver. At a minimum, a reasonable person would first slow down. Second, a reasonable person would have stopped after the collision and at the very least assessed the damage to their own vehicle before driving it again. Finally, a reasonable person would have stopped after their tire deflated from the spike belt. No reasonable person would have continued to drive with one of their wheels so significantly damaged.

[70] The second question must also be answered in the affirmative. Mr. Akey, by continuing to drive in this manner when the risks to doing so would have been known to him and taking no steps to avoid them, is a marked departure from that which a reasonable driver would have done in the same circumstances. This type of driving is on the extreme end of the continuum and far exceeds mere carelessness or negligence.

[71] In all of the circumstances, I find that the Crown has proven beyond a reasonable doubt that Mr. Akey drove in a manner that was objectively dangerous and a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. As such, he is guilty of this offence.

Failing to Stop After an Accident

[72] The next offence Mr. Akey faces is the failure to stop after an accident. The Criminal Code makes it an offence for any person who is operating a conveyance that is involved in an accident and fails, without a reasonable excuse, to stop, give their name and address and offer assistance to anyone who may be injured.

[73] In this case there is no doubt Mr. Akey was in a collision with Brian Powless and he failed to stop. Brian testified to this effect, and Mr. Akey in his testimony admitted as such too. The only question to be answered is if Mr. Akey had a reasonable excuse not to stop. The excuse proffered was that he was in fear for his life from Tyeller and Brian who were chasing him at the time. As noted earlier, I rejected Mr. Akey's testimony and more specifically I reject that the reason he gave for why he did not stop. Based on all the evidence I am satisfied beyond a reasonable doubt that the reason he did not stop was not because he feared for his life from Tyeller and Brian but was because he was trying to avoid capture by the police.

[74] Trying to avoid capture from police is not only not a reasonable excuse to not stop after a collision but is one of the primary reasons the section is in the Criminal Code in the first place. As such I am satisfied the Crown has proven this charge beyond a reasonable doubt and a finding of guilt will be made on it as well.

Flight from Police

[75] The next offence faced by Mr. Akey is flight from police. It is an offence for anyone operating a motor vehicle who is being pursued by the police to fail, without reasonable excuse, to stop the motor vehicle as soon as is reasonable in the circumstances.

[76] Mr. Akey claimed the police were not pursuing him, only the Powlesses were. I rejected this evidence. Given that, there was nothing else either in Mr. Akey's testimony or available on the evidence I accepted, to provide a reasonable excuse for Mr. Akey to not stop for the police. He should have stopped at the latest, by the time Officer Watt was three car lengths behind him with her roof lights and siren activated. As a result, the Crown has proven this charge beyond a reasonable doubt as well and a finding of guilt will be on it too.

Possession of a Weapon for a Dangerous Purpose

[77] The final charge is that of possession of a weapon for a dangerous purpose. This offence can be committed by proving the weapon was possessed for a purpose dangerous to the public peace, or that it was possessed for the purpose of committing an offence. In this case, the Crown has alleged Mr. Akey carried a weapon, a loaded pellet gun for the purpose of committing an offence.

[78] To gain a conviction the Crown must prove the intention to use the weapon for the proscribed purpose preceded its actual use. I find that the Crown has proven this charge beyond a reasonable doubt. Mr. Akey denied having the pellet gun but as noted I rejected his evidence and have accepted that he did based on the evidence of Tyeller and Brian. On the facts as I have found, this was an attack that was unprovoked by Tyeller. Mr. Akey was driving with the pellet gun and instigated the encounter with Tyeller and after doing so used the weapon in an offensive, not defensive manner. Given the manner this unfolded, I am satisfied this was the intention Mr. Akey had for the pellet gun while he possessed it before he used it and before encountering Tyeller. He was driving around with a loaded pellet gun intending to shoot someone with it and came upon Tyeller. By driving around with a loaded pellet gun intending to shoot someone with it, Mr. Akey was possessing it with the intention to commit an offence. Shooting someone with a pellet gun in these circumstances would constitute an assault, an assault with a weapon or even assault cause bodily harm was the victim to be injured. As a result, a finding of guilt will be made on this final remaining charge.

Conclusion

[79] As noted, I reject the evidence of Mr. Akey. His testimony was incapable of belief in the circumstances. I accept the evidence of the Powlesses, the police, and the Millers. Based on that, findings of guilt will be made against Mr. Akey on the charges of dangerous operation of a motor vehicle, failing to stop after an accident, flight from police and possession of a weapon for a dangerous purpose. As noted at the start of these reasons, the charge of being unlawfully in a dwelling house will be dismissed.

Released: December 8, 2020

Signed: Justice Robert S. Gee

[1] My normal practice is to refer to parties and witnesses by their surname. In this case Tyeller Powless' father, Brian Powless also testified. In these reasons, in order to avoid confusion as to whom I am referring, I will I will refer to them by their given names, Tyeller or Brian. By doing so, no disrespect is intended.