Ontario Court of Justice

Date: 2021-03-23 Court File No.: Toronto 20-55000875

Between:

Her Majesty The Queen, Applicant

— and —

Tyrone Matthews, Respondent

Before: Justice Peter N. Fraser

Heard: March 3, 4 & 8, 2021

Counsel: A. Rajan, counsel for the Crown H. Hussain, counsel for the defendant Tyrone Matthews

Fraser J.:

[1] Tyrone Matthews stands charged with unlawful confinement, dangerous operation and failing to stop for police in connection with an incident on November 9, 2019.

[2] It was alleged that Mr. Matthews held his girlfriend, Kylee Jordan-Kalina, against her will in a vehicle and led police on a high-speed chase when they attempted to intervene. She was 8 months pregnant at the time. At trial, Ms. Jordan-Kalina recanted her statement to police and claimed that she was the driver. She testified that the accused was never in the car with her that day. The Crown successfully applied to tender two of the complainant’s out-of-court statements into evidence.

[3] Given these developments, and the content of the statements, the Crown invited me to dismiss the charge of unlawful confinement. It falls to me to decide the two remaining charges. The main issue at trial was the credibility and reliability of Ms. Jordan-Kalina, given the inherent contradiction between her out-of-court statements and her testimony before the court.

Legal Principles

[4] Mr. Matthews is presumed innocent. The Crown must prove the essential elements of each offence beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and never shifts to the defence.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320.

[6] Special considerations apply when a trier of fact is required to make credibility findings in respect of conflicting evidence on an essential element of the offence. The case of a recanting witness is one such example. The court is faced with competing versions of the key events emanating from the out-of-court statement of the witness, which implicates the accused, and the testimony of the witness at trial, which is exculpatory. In this scenario, the framework set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742 applies with some minor modification: see R. v. B.D., 2011 ONCA 51 at para. 105 & 114; R. v. Marki, 2021 ONCA 83 at para. 23; and R. v. Bucik, 2011 ONCA 546 at para. 32-34.

[7] The trier of fact does not simply choose between the two competing narratives. The issue is not which version of events is preferred, but whether the Crown has proven the case beyond a reasonable doubt. The Supreme Court of Canada created the following framework for analyzing evidence of this kind in R. v. W.D., [1991] 1 S.C.R. 742:

• If I believe the evidence favourable to the defence, I must acquit.
• If I do not believe the evidence favourable to the defence, but I am left in a reasonable doubt by it, I must acquit.
• Even if I am not left in doubt by the evidence favourable to the defence, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the accused’s guilt.

[8] At trial, Ms. Jordan-Kalina did not assist the Crown. Her testimony before me amounted to a recantation of her videotaped statement to police concerning anything that might implicate the accused. The Crown cross-examined the complainant pursuant to section 9(2) of the Canada Evidence Act and subsequently brought an application to tender her videotaped statement to police along with various utterances she made on the day in question. The defence conceded the admissibility of the video statement to police.

[9] In a separate ruling, I found the complainant’s utterances captured by the in-car camera system in one of the police cars at the roadside were admissible under the spontaneous utterance exception to the hearsay rule. I ruled that two other sets of utterances to police officers, which were not recorded, would not be admitted.

[10] I must, therefore, assess the conflicting evidence of Ms. Jordan-Kalina, through the lens of the W.D. analysis and in the context of the evidence as a whole. The Crown asks me to reject her testimony at trial and to accept her out-of-court statements as true. The Crown fairly acknowledges that the statements do not support a conviction on the charge of unlawful confinement, but argues that the charges of failing to stop for police and dangerous operation have been proved beyond a reasonable doubt.

[11] The defence argues that Ms. Jordan-Kalina’s testimony in court should be believed and, in the alternative, that she is so unreliable given her conflicting statements that there should be a reasonable doubt about Mr. Matthews’ guilt.

The Police Chase

[12] On November 9, 2019, the complainant’s mother, Nicole Jordan, received a phone call from Mr. Matthews. The call came at about 4:11 p.m. She testified that she recognized Mr. Matthews’ voice and that he said, “Hi Nicky, I have Kylee.” Ms. Jordan asked to speak to her daughter, but the accused told her she couldn’t talk right now. Ms. Jordan heard muffled sounds and believed her daughter was being held against her will. She came to believe the two were driving in a car. She called 911 and gave police the description of a silver Hyundai the couple had rented together.

[13] Using GPS tracking, the police located the Silver Hyundai heading west on Highway 401 approaching Islington Avenue in Toronto. The vehicle was spotted at 5:23 p.m. Police officers boxed in the vehicle using four squad cars, with lights and sirens activated, and brought it to a stop. As officers began to exit their vehicles, the Hyundai manoeuvred through a gap between the squad cars and drove away at a high rate of speed.

[14] Officer Konkle testified that he narrowly avoided being struck as the car drove by. He further testified that he saw a male driver and a female passenger in the car. A police chase ensued, which was quickly called off on account of public safety concerns. The Hyundai exited the highway at the Islington ramp, where police officers lost sight of it. The vehicle was found nearby, stopped in front of 8 Ringway Crescent at 5:30 p.m. Ms. Jordan-Kalina was on the boulevard beside the car with no shoes on. She was upset and crying and had a bloody lip. There was no one else with her.

The Complainant’s Utterances at the Roadside

[15] While waiting in the back of a police squad car in front of 8 Ringway, Ms. Jordan-Kalina made a phone call to someone named Benny. Her side of the call was captured by the in-car camera system (though she cannot be seen on the video). The following words were recorded:

Hello Benny? Benny, the cops like came and stopped the car. It’s Kylee. It’s Kylee, Tyrone’s baby-mom. The cops came and like they like trapped us in and Tyrone got out of the car and started running and like now they’re impounding the car. I don’t know where he is and they’re going to arrest [inaudible]. Yeah… because we ran. And cause they said there’s a car, a gun in the car… The cops, and there’s not. And I don’t know what to do, I don’t know what to do. And I told him I was going to call you… By like Weston Road, I don’t know… yeah, I need them to let me out of here, hold on. They have me in the back of the fucking cruiser, they won’t let me get out, yeah… No I can’t… I don’t know what to do. He asked me, he doesn’t have your number or anything… yeah, like, I’m using the phone, and my sim card in.

The Complainant’s Videotaped Statement to Police

[16] Ms. Jordan-Kalina declined to give a videotaped statement to police on November 9, 2019. However, she re-attended 22 Division on March 15, 2020 in the wake of another incident involving Mr. Matthews. She provided a statement describing the new event, as well as the events of November 9, 2019. On consent of both parties, the details of the new complaint were redacted from the transcript that was filed and those portions of the video were not played in court. Though some references to assaultive conduct survived the vetting process, I have disregarded them and have not engaged in any improper reasoning: R. v. B.(C.R.), [1990] 1 S.C.R. 717 at para. 31; R. v. Handy, [2002] 2 S.C.R. 908 at paras. 49-55.

[17] In her video statement, Ms. Jordan-Kalina states that she was in a car with Mr. Matthews on November 9, 2019. She states she was there of her own free will, but that she asked several times to be dropped off as the ride went on. Her evidence is equivocal as to whether she was confined – thus the Crown’s invitation to dismiss the charge of unlawful confinement. Mr. Matthews called Ms. Jordan-Kalina’s mother from the car and told her they were together. According to the complainant, there were several more phone calls during which Mr. Matthews was antagonizing her mother, promising to drop her off and not doing so.

Eventually the police appeared and stopped the car on the highway. Mr. Matthews was the driver and he “took off from the cops.” In the video statement Ms. Jordan-Kalina says, “he was driving crazy and I wasn’t wearing my seatbelt and I was literally like flying everywhere and I smashed my lip.”

Complainant’s Evidence at Trial

[18] At trial, Ms. Jordan-Kalina told a completely different story. She testified that she met Mr. Matthews near her condo at Parklawn and Lakeshore on November 9, 2019. She received a phone call from her mother, who heard Mr. Matthew’s voice and became upset as she disapproved of them being together. Ms. Jordan-Kalina got in her car and drove to Scarborough, where she picked up a man she met on the dating application, Tinder. As they were driving back from Scarborough, police cars boxed them in on the highway. Ms. Jordan-Kalina claimed that she was driving and that she was the one who drove away from the police. She claimed that she dropped the man off after exiting the highway as she didn’t want him involved.

Analysis of the Complainant’s Evidence at Trial

[19] I find Ms. Jordan-Kalina’s stated reasons for fleeing from police to be problematic. Principally, she claimed that she fled because didn’t want anyone to learn of her rendezvous with the man from Tinder. It is not clear to me how a police vehicle stop would have lead anyone to know of this encounter. She also claimed she was scared. However, on her evidence she was doing nothing wrong, such that she would have any reason to fear the police. I find it difficult to accept that Ms. Jordan-Kalina would escape a phalanx of police cruisers after being pulled over, then lead them on a high speed chase, all while eight months pregnant, for the reasons she has stated. And if she did resort to such extreme lengths to avoid police, it makes no sense that she would remain standing beside the car in front of 8 Ringway Crescent when they arrived.

[20] Ms. Jordan-Kalina was cross-examined by the Crown on her utterances in the back of the squad car, where she told someone named Benny that Mr. Matthews had gotten out of the car and started running. She agreed that she made these utterances, but denied they were true.

[21] First, she claimed to have made the phone call so that Mr. Matthews would not find out she was with a man she met on Tinder. This makes no logical sense. If that were her objective, there would be no reason to tell anyone about the incident at all. It makes even less sense that she would circulate a fake story about being with Mr. Matthews at the time, if he was the very person she was trying to hide the incident from. He would know he wasn’t there with her.

[22] Second, Ms. Jordan-Kalina claimed that she knew she was being recorded, knew also that she would be giving a statement to police, and had to create a story in the back of the squad car that would be consistent. However, Ms. Jordan-Kalina gave no statement to police that day. It was four months later that she spoke to police, in the wake of a separate incident involving the accused. Nor was there any reason to say anything at all on camera if she knew she was being recorded. I reject these explanations for the call to Benny as unworthy of belief.

[23] In her testimony at trial, the complainant claimed that Benny was her “gay guy friend” and that he was not a friend of Mr. Matthews. This assertion is contradicted by the content of the call itself. Ms. Jordan-Kalina identifies herself as “Tyrone’s baby-mom” revealing that Benny would only know her by reference to the accused.

[24] Ms. Jordan-Kalina was cross-examined by the Crown on her videotaped statement of March 15, 2020 as well. She admitted to voluntarily making the statement, but denied that it was true. In her testimony before me, she claimed she was emotional, unstable and motivated by jealousy at the time. She had seen messages between Mr. Matthews and other women, she was angry, and “just snapped.” This contradicts her earlier testimony that she intended to speak to police all along, which was why she implicated the accused in the phone call to Benny on the night of the police chase.

[25] Throughout her testimony, Ms. Jordan-Kalina’s allegiance was obvious. She was hostile to the interests of the Crown and was willing to say whatever she thought would assist the defence in this case. I found her testimony to be completely contrived and I reject it as false. I do not accept the version of events proffered by Ms. Jordan-Kalina at trial and I find that it does not raise a reasonable doubt.

[26] Having rejected the evidence favouring the defence, I must still analyze the rest of the evidence and determine whether the charges have been proven beyond a reasonable doubt based on the evidence I do accept.

Analysis of the Video Statement to Police

[27] The March 15, 2020 videotaped statement was given in a police station, under solemn affirmation, following a full caution about the consequences of making a false statement. The value of these traditional indicators of reliability is blunted, given that Ms. Jordan-Kalina testified at trial under solemn affirmation and was not truthful. This dynamic highlights the central issue in the case: the Crown asks me to accept the out-of-court statements of a witness who has lied in court before me. This finding is available in law as I can accept some, all, or none of a witness’s evidence. However, the analysis requires careful scrutiny of the conflicting narratives, the reasons for the contradiction, the circumstances surrounding the making of the out-of-court statements, and the presence of any confirmatory evidence.

[28] I am able to observe Ms. Jordan-Kalina’s demeanour in the March 15, 2020 statement. The quality of the video and audio recordings are good. She appears calm and at ease with the police officers in the room. She is clearly lucid and her answers are responsive to the questions being asked. I have no concerns about the voluntariness of statement. The content of the statement is logical and internally consistent.

[29] Counsel for Mr. Matthews observes that Ms. Jordan-Kalina gives information about the November 9, 2019 incident in the course of reporting some other event from March 15, 2020. Counsel cautions that she may simply be “piling on” and attempting to enhance whatever complaint she was asserting at that time. I disagree. It is the police who bring up the November incident, not the complainant. And Ms. Jordan-Kalina actually resists the suggestion that she was assaulted at that time. Officer Tu asks if she was assaulted in November and Ms. Jordan-Kalina answers no. The officer presses the point and mentions that there was blood on her sweater at the time. Ms. Jordan-Kalina again denies any assault and explains that she hit her face due to Mr. Matthews’ erratic driving. She states that it looked worse than it was and that police must have assumed she was assaulted that day. This exchange shows the complainant declining an easy opportunity to make matters appear worse for the accused.

[30] The content of the videotaped statement is confirmed by the evidence of the police officers who conducted the vehicle stop. In the statement, Ms. Jordan-Kalina states that they were in a police chase, they pulled over onto the shoulder of the highway and when officers approached, they took off. She further states that she injured her lip during the erratic driving. The events surrounding the police chase were described in similar terms by Officer Konkle and Officer Stone and the injury to her lip was observed by Officer La Penna.

[31] More specifically, Officer Konkle testified that he observed two occupants in the car as it sped past him. He described the driver as a black male and the passenger as a black female with a fur lined hood up over her head. He was only able to see the nose area and the top of the forehead of both people. The defence argues that this observation is not reliable. Officer Konkle only saw them for a second or a “quick flash.” And while no evidence was adduced as to her ethnicity, Ms. Jordan-Kalina appears light-skinned, rather than black as the officer described.

[32] I accept Officer Konkle’s evidence on this point. While his opportunity to view the occupants was brief, he was very close by and was well-positioned to see into the car. He may have been incorrect about the female passenger’s skin tone, but his observation of the fur lined hood is confirmed by the in-car camera video, which clearly shows Ms. Jordan-Kalina wearing a coat with a fur lined hood in front of 8 Ringway Crescent.

[33] The complainant’s statement is also confirmed by the evidence of Nicole Jordan, who testified that she spoke to Mr. Matthews in a series of phone calls beginning shortly after 4:00 p.m. on November 9, 2019. She recognized the accused’s voice, having spoken to him on the phone before. He called her by her name and referred to her as the complainant’s mother. There were 5-6 phone calls spanning some fifteen to twenty minutes. Ms. Jordan also spoke to her daughter directly during one of the calls. At no point during these exchanges did the parties see a need to identify themselves. In this context, I am satisfied that Ms. Jordan recognized the voice of the accused: see R. v. Williams, [1995] O.J. No. 1012 (Ont. C.A.), leave to appeal refused, [1995] S.C.C.A. No. 284; R. v. Pinch, 2011 ONSC 5484 at paras. 67-80 and R. v. Pynenburg, [2015] O.J. No. 7272 at paras. 36-39. She was not seriously challenged in cross-examination and I accept her evidence. Ms. Jordan confirms the content of the video statement on the following points:

• The complainant states that while they were in the car together, Mr. Matthews called her mother and was “antagonizing” her. He was “taunting my mom that he was with me.” Ms. Jordan testified that Mr. Matthews called her and said, “I have Kylee.” He refused to put her on the phone and alluded to having mistreated her.
• In her statement the complainant states there were multiple calls between the accused and her mother: “She kept calling throughout the whole time.” Ms. Jordan testified that there were 6-7 phone calls back and forth between them.
• The complaint states that Mr. Matthews “kept telling my mom he’s going to drop me off, and he wouldn’t drop me off.” Ms. Jordan testified that she kept asking for her daughter to be dropped off. At one point, Mr. Matthews told her she could see her daughter the following day. At another point, Ms. Jordan was told he would drop her at her sister’s place. Ms. Jordan drove there to await their arrival, but they never came.
• In the statement the complainant says the following: “So I couldn’t get into my phone and he took my SIM card in my phone and put it in his phone so that when my mom got the phone call, it was coming from my number.” According to Ms. Jordan the phone calls from Mr. Matthews came from her daughter’s phone.

Analysis of the Complainant’s Utterances at the Roadside

[34] Ms. Jordan-Kalina made utterances consistent with her videotaped statement while sitting in the back of a police squad car at 8 Ringway Crescent. I ruled this utterance was admissible under the spontaneous utterance exception to the hearsay rule. While I have already dealt with the admissibility of this evidence in a separate ruling, a brief review of the rationale for this hearsay exception goes some way to explaining the purpose for its admission and the use I can ultimately make of it as the trier of fact.

[35] The spontaneous utterance exception has been historically, and somewhat imprecisely, referred to as res gestae: see R. v. Borel, 2021 ONCA 16 at para. 50 and R. v. Camara, 2021 ONCA 79 at para. 85. The Ontario Court of Appeal described the basic components of the doctrine in R. v. Khan, [1988] O.J. No. 578 (Ont. C.A.), affirmed, [1990] S.C.R. 531:

...a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added.]

[36] The passage above reveals that a spontaneous utterance becomes admissible where the possibility of concoction can safely be discounted based on the circumstances in which the statement was made: see also R. v. Nurse, 2019 ONCA 260 at paras. 77-88. And as the Court of Appeal recently observed in R. v. Camara, 2021 ONCA 79, supra, at para. 85, the doctrine posits that the mind of the declarant is “so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction.”

[37] In this case, the precise timing of the utterance is not clear, as the timestamp on the in-car camera video was not authenticated in court. However, Ms. Jordan-Kalina was found in front of 8 Ringway at 5:30 p.m. and did not remain there for very long. Officer Tu spoke to her at 22 Division Police Station following an interview of Nicole Jordan that began at 6:04 p.m. I find that the utterance was proximate in time to the police chase. Moreover, the stressful sequence of events that triggered the utterance was still unfolding when the statement was made.

[38] Given the manner in which this case unfolded, the utterances at the roadside also engage the rule against prior consistent statements. I have admitted Ms. Jordan-Kalina’s March 15, 2020 videotaped statement to police and treated it as the principal statement implicating the accused. In this context, her November 9, 2019 utterances amount to a prior consistent statement vis-à-vis the police statement.

[39] The fact that a witness has previously asserted that which she testifies to in court is generally inadmissible: R. v. Stirling, 2008 SCC 10 at para. 5. I find this situation to be analogous. Prior consistent statements are usually viewed as self-serving and lacking probative value. The danger is that they lend themselves to the fallacy that repetition equates to truthfulness.

[40] However, there are several exceptions to the general exclusionary rule: for example, prior consistent statements can properly be admitted as pure narrative or to rebut an allegation of recent fabrication. In this case, the Crown argues the utterances at the roadside constitute narrative as circumstantial evidence. This use of a prior consistent statement was explained in R. v. Khan, 2017 ONCA 114; leave to appeal refused, [2017] S.C.C.A. No. 139 at para. 41:

But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, [2008] SCC 24, at para. 39; R. v. Evans, [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.

[41] In some cases, a spontaneous utterance may be the only evidence from a witness, but where the witness testifies it can operate as a prior consistent statement. In this context, Justice Paciocco has explained why the utterance may yet have evidentiary value: “There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim”: David Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013), 17 Canadian Criminal Law Review 181, pp. 192-193.

[42] The Court of Appeal considered the relationship between the spontaneous utterance exception to the hearsay rule and the exception to the rule against prior consistent statements in R. v. Khan, 2017 ONCA 114, supra, at para. 26:

As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184.

[43] In my view, the circumstances in which these utterances were made speak compellingly to the truthfulness of what was said. Ms. Jordan-Kalina was still at the roadside when she made the call to Benny. She had been injured in a high-speed police chase while she was eight months pregnant. She had a swollen, bloody lip and no shoes on. She was in the back of a police squad car and expressed the belief that she couldn’t get out, having been told that police suspected there was a gun in the car.

[44] It is clear from the recording of the call that the complainant was distraught when she spoke to Benny. She repeatedly says, “I don’t know what to do.” She sounds panicked and upset, can be heard banging on the window, and is at times audibly overcome with emotion. Ms. Jordan-Kalina was clearly consumed by the stress and pressure of the event, such that the possibility of concoction can be safely discounted.

[45] Moreover, this was a candid conversation with someone she knew, rather than a report to the police. Having rejected her explanation for this call, there is no evidence before me of any reason for her to wrongly implicate Mr. Matthews to this person. This is but one factor I have considered in evaluating the utterances at the roadside and I have cautioned myself that there is no burden on the defence to establish a motive to fabricate: R. v. Ignacio, 2021 ONCA 69 at paras. 29-59.

[46] In my view, these utterances are reliable and they assist me in evaluating the veracity of the March 15, 2020 video statement to police.

Findings of Fact

[47] The reasons for Ms. Jordan-Kalina’s conflicting narratives can be discerned from an examination of all the circumstances surrounding them. In her March 15, 2020 video statement to police, Ms. Jordan-Kalina stated that she had been afraid of Mr. Matthews, but was not afraid anymore. He had been controlling, but she was “out of the situation” and would not let him have control over her anymore. This assertion is borne out by the events of November 9, 2019, when she declined to make a formal statement to police and instead called an associate of the accused at his direction. I accept that she was muted by fear that day.

[48] As discussed above, her partiality to the defence at the time of trial was clear. She described Mr. Matthews as her boyfriend, but quickly corrected herself and claimed he was not her current boyfriend and that they hadn’t spoken. She acknowledged in her testimony that she wanted the accused to be in their child’s life. Whether she is compelled now by fear or has freely decided to assist Mr. Matthews for her own reasons, I do not believe her testimony at trial.

[49] I find Ms. Jordan-Kalina’s video statement to police to be credible and reliable for the reasons stated above, most prominently in view of the confirmatory evidence of the police officers and Nicole Jordan. I find the utterances to Benny in the back of the squad car on the day in question to be credible and reliable, for the reasons stated above. The circumstances surrounding these spontaneous utterances speak to the truthfulness of her videotaped statement to police on March 15, 2020.

[50] Upon careful consideration of all of the evidence, I accept Ms. Jordan-Kalina’s out-of-court statements. I find, beyond a reasonable doubt, that Mr. Matthews was the driver of the car on November 9, 2019. The defence concedes that if the question of identity is resolved in favour of the Crown, the charge of failing to stop for police is made out. Accordingly, I find Mr. Matthews guilty of that offence.

Dangerous Operation

[51] The defence argues that, even if identity is proved, the driving in question does not make out the charge of dangerous operation beyond a reasonable doubt.

[52] Dangerous operation is conduct involving a marked departure from that which one would expect from a reasonably prudent driver in the accused's situation: R. v. Chung, 2020 SCC 8 at para. 14. The Supreme Court elaborated on the mens rea for this offence in R. v. Roy, 2012 SCC 26 at para. 36:

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 (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take 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. [Emphasis in original.]

[53] The driving in this case was clearly dangerous. Mr. Matthews was boxed in by police cars on a busy highway and brought to a stop. He escaped the police formation and accelerated away at a high rate of speed with tires screeching. Officer Konkle testified he had to retreat into his squad car to avoid being struck and narrowly escaped impact. Defence counsel asks me to reject this point, given the officer failed to note this important detail in his memo book. I accept the officer’s evidence that the omission was an oversight, but that the incident was clear in his memory as he feared for his life that day. I found his evidence to be measured and fair and his observations were confirmed in other material respects by Officer Stone, who also participated in the box-in manoeuvre.

[54] A police chase ensued, which was called off on account of public safety concerns. The passenger of the vehicle was eight months pregnant and suffered an injury to her lip on account of the manner of driving. When she told Mr. Matthews she was bleeding, he didn’t stop or respond at all. She described the driving in the following terms in her video statement: “he was driving crazy and I wasn’t wearing my seatbelt and I was literally like flying everywhere and I smashed my lip.”

[55] In my view a reasonable person would have foreseen the risk posed by this manner of driving and would have avoided it. I find the driving constituted a marked departure from the standard expected of a reasonable person in the same circumstances as the accused.

Conclusion

[56] In conclusion, I find Tyrone Matthews guilty of dangerous operation and failing to stop for police. I find him not guilty of unlawful confinement.

Released: March 23, 2021 Signed: Justice Peter N. Fraser