BARRIE COURT FILE NO.: CR-12-0239-00AP

DATE: 20131206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LARRY HASTINGS

Appellant

L. Saunders, Assistant Crown Attorney

L. Hochberg, for the Appellant

HEARD: October 7, 2013

ON APPEAL FROM THE DECISION OF MAIN J.

DATED SEPTEMBER 17, 2012

McISAAC J.

[1] The appellant disputes his conviction for flight from a peace officer contrary to s.249.1 of the Criminal Code of Canada. In particular, he concedes the actus reus of the offence but suggests the trial judge reached an unreasonable verdict by failing to properly consider his evidence of a denial of criminal intent. He also argues that the trial judge erred in failing to consider his alternative defence of reasonable excuse.

BACKGROUND

[2] The appellant does not challenge the factual finding that for a period of approximately three minutes, he failed to stop when pursued by the officer between Orr Lake and the northern limits of Hillsdale. Although the officer was operating an unmarked police vehicle, he had activated throughout the pursuit all of his emergency lights as well as his siren. These consisted of flashing strobe lights on the side mirrors, flashing red and blue lights in the grille and a flashing red light in the windshield.

[3] The appellant admitted that he was operating an unfit vehicle at the time in question. In particular, it tended to wander all over the road due to a mechanical problem that had existed for quite a while and that he intended to eventually connect. He denied intentionally avoiding the officer and maintained that he was simply trying to ignore a vehicle that refused to pass him. As it turns out, this was the driver who had called for the police intervention due to the danger posed by the appellant.

[4] Specifically, he testified that he had manoeuvred his rearview mirror to deflect the headlights of the “tailgating” vehicle and that he had turned up the volume on his radio. This constituted his explanation for not having noticed the emergency lights and siren of the pursuing unmarked police vehicle. The trial judge rejected this evidence and found that the appellant had made a decision not to stop his vehicle from a police pursuit over the course of several miles. In the result, he found him guilty of this charge.

ANALYSIS

[5] At the outset, I would like to deal with the appellant’s submission that the trial judge failed to consider the alternate defence of reasonable excuse. In my view, this submission fails. The only defence available was absence of mens rea as the record is totally devoid of evidence supporting a reasonable excuse: see R. v. Armstrong, 2011 ONCA 709 at para. 9 where Watt, J.A. stated:

A claim of “reasonable excuse” by a person charged with a flight offence is not a denial of the essential elements of that offence. An excuse speaks to whether an accused should be held accountable for what otherwise would be a crime: (citations omitted).

[6] The Appellant next argues that the trial judge fell into legal error because he failed to appreciate and, therefore, address the Crown’s requirement to establish mens rea beyond a reasonable doubt, that is, an intention to evade the police. I am unable to agree with this submission. As the Crown observes, the trial judge did appreciate that an intention to evade the police was required to be established. At pp. 115-6 of his reasons, the trial judge states:

It’s clear that there is a pursuit. I do find that he would have been aware of and very clearly aware of it from at least Orr Lake, accelerated and it seems that out in the darkness of the highway between those two villages, started to slow down. We had the officer describe how the speeds then got down to something as they entered the village and finally Mr. Hastings bringing his vehicle under control. It’s clear the police were there, required him to stop, in fact they’re obliged to get the vehicle off the road, it was a danger, and Mr. Hastings’ decision not to stop for at least several miles between those two villages until finally bringing it under control and stopping for the officer in downtown Hillsdale. The Crown has proved the case beyond a reasonable doubt on that count. (my emphasis added).

[7] In my view, this passage makes it crystal clear that the trial judge appreciated the burden on the prosecution to establish an intent to evade the police beyond a reasonable doubt.

[8] Finally, the Appellant suggests that the trial judge’s rejection of his claim of no mens rea was unreasonable. In particular, he challenges the findings that his trial testimony was a “concoction”, that it was “full of internal contradictions” and that it was “self-serving”. Again, I am unable to agree with any of these pretensions. Given the acceptance of the officer’s evidence that he had pursued the appellant for some considerable distance with all of his lights and siren activated, I find it most appropriate in those circumstances to describe Mr. Hasting’s denial of awareness of this pursuit as nothing more than a “concoction”, that is, a total invention. There was an evidentiary basis for this determination and, accordingly, it was not unreasonable.

[9] The trial judge found it inconsistent that the appellant was driving an admittedly unsafe vehicle that wandered all over the highway but that he was attempting to exercise caution by allowing the vehicle that was “tailgating” him to pass. I find no unfairness in describing these discrepancies in such a manner. In addition, the trial judge found it inconsistent for the Appellant to testify that he did not stop his vehicle until he arrived in Hillsdale because he had a friend who lived there and to later admit that he did not know where in Hillsdale this friend resided. All of these observations were evidentiary based and did not amount to unreasonable conclusions.

[10] Finally, when confronted by the suggestion that the manipulation of the rearview mirror would not account for the fact that he would have been able to clearly see the strobe lights in the side mirrors of the pursuing cruiser, the appellant attempted to refute that incriminating circumstance by adding to his scenario that he had manoeuvred his side mirrors as well. The trial judge’s observation that the appellant was making up his story “on the go” is patently reasonable and it can be fairly described as self-serving.

CONCLUSION

[11] For all of these reasons, the appeal herein is dismissed, the conviction is affirmed and the stay of driving prohibition is vacated.

McISAAC J.

Released: December 6, 2013