R. v. Samuel Dumfeh
Date: February 28, 2025
File No.: 4911-998-24-91101142-00
Court: Ontario Court of Justice
Parties: His Majesty the King v. Samuel Dumfeh
Before: Justice E. Prutschi
Location: Newmarket, Ontario
Appearances:
- Z. Sethna, Counsel for the Crown
- N. Debellefeuille, Counsel for Samuel Dumfeh
Excerpt of Proceedings
PRUTSCHI, J. (Orally):
In the early morning hours of October 31, 2023, Mr. Samuel Dumfeh was stopped by police for a sobriety check. An investigation ensued. After approximately five minutes of that investigation while talking to the investigating officer, Mr. Dumfeh suddenly drove off accelerating away from Constable Yellapah even as the officer was leaning against the driver’s side roof of the car. Officer Yellapah returned to his cruiser and aired to dispatch that Mr. Dumfeh was arrestable for obstruct police. The officer inquired about air support but none was available. He was advised by his sergeant not to engage in a formal pursuit of Mr. Dumfeh. The officer proceeded to drive at a leisurely pace with his emergency lights off towards the last known direction of Mr. Dumfeh’s vehicle. He testified that this was not a pursuit, but, since he had Mr. Dumfeh’s key fob in his police possession, he thought he would at least drive in that direction and see whether the vehicle had become involved in an accident or simply become disabled.
Mr. Dumfeh was not located at that time but was later arrested and charged only with the offence of flight from police, pursuant to s. 320.17 of the Criminal Code. This Section is headed “Flight from Police Officer” within the Criminal Code and reads as follows:
Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.
Constable Yellapah was the sole Crown witness. At the close of the Crown case Mr. Dumfeh brought an application for a directed verdict. He argues that he was not “being pursued” at the time and, therefore, an essential element of the offence is missing.
He relies on the Ontario Court of Appeal decision of R. v. Quinn, 2014 ONCA 650. At paragraph 10 of that decision the Court of Appeal adopts the dictionary definition of ‘pursue’, namely, to “follow with intent to overtake or capture”. This same definition was cited with approval in the Summary Conviction Appeal Court decision of R. v. Jensen, 2015 ONSC 1040.
The defence, therefore, argues that although Mr. Dumfeh might well be guilty of obstruct police or even dangerous operation he cannot be guilty of flight from police as Constable Yellapah had no intention to “overtake or capture” as the definition of ‘pursue’ seems to require.
Neither of these cases address a factual situation where an accused’s flight from police takes place after the accused first complied with a traffic stop and where police subsequently made a public safety decision not to engage in a formal pursuit.
Such a situation was addressed much more recently by Justice Garg of the Ontario Court of Justice in R. v. Parnell, 2024 ONCJ 310. At paragraphs 27 to 29 Justice Garg addresses exactly the factual scenario facing us here with Mr. Dumfeh. Like here, in R. v. Parnell there was no dispute that the officer had pursued the accused and demanded he stop by activating emergency lights on the cruiser. Like Mr. Dumfeh, Mr. Parnell did indeed stop, and upon stopping it was clear that he was not free to leave until the conclusion of the investigation. Mr. Parnell “took off for the very purpose of evading police”. Justice Garg continues at paragraph 29,
The only question is whether the offence remains available in circumstances where the accused had initially stopped as directed. In a sense there was no active pursuit after Mr. Parnell had pulled over. But the case law makes clear that a driver who pulls over in response to an officer’s direction and then speeds away before the interaction is complete is rightfully guilty of this offence. The driver cannot reasonably think that their conduct would not result in a pursuit.
At this point Justice Garg cites the cases of R. v. Athwal, 2016 ONCJ 89 as well as referring to the R. v. Jensen case that I previously referred to at paragraph 30. He then continues,
In effect, the passages in s. 320.17 of ‘while being pursued’ and ‘who fails...to stop the motor vehicle’ are interpreted broadly to give effect to the legislative purpose while respecting the statutory text. In this context, the pursuit remains ongoing until the driver is free to leave, and the obligation to stop includes the obligation to stay stopped.
I find Justice Garg’s reasoning to be very compelling. It respects the clear legislative purpose of s. 320.17 which is designed to criminalize the extraordinarily dangerous act of fleeing police while in a car. There is no doubt that if Constable Yellapah took any steps to further pursue Mr. Dumfeh, even steps as simple and ineffective as running a few paces after the car as it peeled away, flight from police would be made out. I cannot endorse the absurdity that would short-circuit a charge of flight from police simply because police made a strategic decision, informed by public safety concerns, not to engage in a highly dangerous chase.
Counsel for Mr. Dumfeh urges me to be bound by the Ontario Court of Appeal decision in R. v. Quinn, but I note that the Court in R. v. Quinn at paragraph 10 explicitly declined to decide “the outer limits” of flight from police.
I accept instead the Crown’s argument that pursuit in this case began the moment Constable Yellapah activated his emergency lights. The pursuit did not end when Mr. Dumfeh stopped. ‘Pursuit’ is a continuous act which, as Justice Garg put it in R. v. Parnell, “remains ongoing until the driver is free to leave, and the obligation to stop includes the obligation to stay stopped”.
Moreover, while Constable Yellapah did not consider himself to be in formal pursuit of Mr. Dumfeh, it is clear to me that the officer is using that word in the context of police policy on formal high-risk pursuits. Despite saying that he did not pursue Mr. Dumfeh, the officer did in fact engage in a form of pursuit. As soon as Mr. Dumfeh sped away Constable Yellapah quickly got back into his cruiser. He radioed for assistance and began driving in the last known direction of Mr. Dumfeh. His thought was that he might come across the vehicle in an accident or otherwise disabled by virtue of its distance from the key fob. He testified that he lost sight of the vehicle at one point but at another time he was able to see its taillights well off in the distance.
A pursuit under s. 320.17 need not be a high-speed chase, but simply an active effort to overtake and capture the accused. Had Constable Yellapah managed to find Mr. Dumfeh’s vehicle, the inference is quite clear that he would have detained Mr. Dumfeh again and continued his investigation. This broad interpretation of ‘pursuit’ is most in keeping with the legislative purpose of s. 320.17 which is to deter and punish the dangerous act of vehicular flight from lawful police investigations. The existence of alternative charges, such as obstruct police or dangerous operation, do not negate the reality that Mr. Dumfeh’s actions could also meet the definition of flight from police as articulated in s. 320.17.
For these reasons, I find that the Crown has presented at least some evidence on all the essential elements of the offence. The motion for directed verdict is therefore dismissed.
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Michelle Waters
(Name of authorized person)
certify that this document is a true and accurate transcript of the recording of
Samuel Dumfeh
in the
Ontario Court of Justice
(Name of case)
(Name of court)
held at
50 Eagle Street West, Newmarket ON L3Y 6B1
(Court address)
taken from Recording
4911_303_20250228_084616, which has been certified in Form 1.
March 7, 2025
(Date)
(Electronic signature of authorized person)
2695391641
(Authorized court transcriptionist’s identification number – if applicable)
Ontario, Canada.
(Province of signing)
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.