R. v. Jensen, 2015 ONSC 1040

COURT FILE NO.: 12-12036

DATE: March 9, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

SEAN JENSEN
Appellant

Moiz Karimjee, for the Crown

Michael Johnston, for the Appellant

HEARD: October 1, 2014

On appeal from the decision of the Honourable Justice J.P. Wright, Ontario Court of Justice at Ottawa on July 23, 2013.

JAMES J

[1] This is an appeal from the decision of the Honourable Justice J.P. Wright made July 23, 2013 wherein he convicted the appellant for the offence of failing to stop a vehicle as soon as reasonable while being pursued by a peace officer in order to evade the peace officer contrary to section 249.1 of the Criminal Code of Canada.

[2] At about 12:30 a.m. on August 17, 2012 Cst. Eric Burnie of the Ottawa Police Service stopped a vehicle being operated by the appellant in the Vanier neighbourhood of the City of Ottawa.

[3] Two events preceded this traffic stop. Firstly, the major crimes unit of the Ottawa Police Service had caused a broadcast to be made requesting police officers to take special note of sex trade workers due to recent violent crime activity.

[4] Secondly, Cst. Burnie had encountered a known sex trade worker, A.H., earlier in his shift. At that time he observed that A.H. was under the effect of drugs. They had a brief interaction “to check in on her and make sure everything was okay with her” (transcript page 13, line 10 to 20).

[5] A.H. was known to the police as a drug addicted sex trade worker and Cst. Burnie described her as a vulnerable person.

[6] While on patrol later in his shift Cst. Burnie observed A.H. in the front passenger seat of a vehicle being operated by the appellant. There was nothing unusual about the way the vehicle was being driven. Nevertheless, Cst. Burnie executed a U-turn and, after following the vehicle long enough to obtain the licence plate details, he signalled the appellant to pull over.

[7] When Cst. Burnie approached the driver’s side of the vehicle, A.H. advised him that the appellant was a friend who was giving her a ride. The officer requested the appellant to produce the documentation required by the Highway Traffic Act “in order to make a record of his contact with this vehicle, the appellant and to associate that with A.H.’s presence in the vehicle”. Cst. Burnie said that in doing so, he intended to check the appellant’s Highway Traffic Act documentation and to act on the earlier police broadcast to take special note of all sex trade workers.

[8] Cst. Burnie made two requests for the appellant to produce documents to which the appellant responded, “Nope, I’m taking off” at which point the appellant put the vehicle in gear and drove away.

[9] Simultaneous with Cst. Burnie re-entering his patrol vehicle, the appellant executed a right turn and disappeared from view. Cst. Burnie made a radio broadcast that the appellant had fled from him, gave a description of the vehicle and its last known direction of travel.

[10] He regained sight of the vehicle and caught up to it in a small parking lot off of Montreal Road. Another patrol vehicle was already at this location, parked in the entrance to the parking lot. Cst. Burnie positioned his vehicle so as to seal off the parking lot and prevent the appellant’s vehicle from exiting. Cst. Burnie said when he arrived, the appellant’s vehicle was still in motion, and the appellant was executing a sort of three-point turn. A.H. was standing outside the vehicle near the rear, passenger side corner.

[11] The appellant was arrested at gunpoint and taken into custody. Cst. Burnie said the traffic stop occurred at 12:36 a.m. and the arrest occurred at 12:38 a.m.

[12] The appellant raises the following issues in his Notice of Appeal:

a) Did the trial judge err in law by finding that the roadside detention did not constitute a violation of section 9 of the Canadian Charter of Rights and Freedoms (“the Charter”)?

b) Did the trial judge err in law by failing to address whether section 9 was violated in light of the admission of both police officers that they were not in pursuit of the appellant?

c) Did the trial judge err in law by finding that there was no breach of section 10(a) of the Charter?

d) Did the trial judge err in law by finding there was no breach of section 10(b) of the Charter?

e) Did the trial judge err in law by admitting evidence which emanated entirely from the appellant’s unconstitutional roadside detention?

f) Did the trial judge err in law by misapprehending the essential elements of section 249.1 of the Criminal Code?

g) Did the trial judge err in rendering an unreasonable verdict?

[13] The basis of review on appeal against a conviction is contained in section 686(1) of the Criminal Code. Briefly stated, on the hearing of an appeal against a conviction the court of appeal may allow the appeal where it is of the opinion that:

a) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

b) the judgment of the trial court should be set aside on a wrong decision on a question of law, or;

c) any ground that there was a miscarriage of justice.

[14] In a proceeding under section 681(1)(a)(i) the Court of Appeal is entitled to review the evidence, re-examining it and reweighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it (see R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.) Provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge or permit doubts it may have to persuade it to order a new trial (see R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656.)

[15] In a proceeding under section 686(1)(a)(ii), the standard of review on a question of law is correctness. If the appellant demonstrates the presence of an error of law, the error is presumed to produce a miscarriage of justice unless the Crown can demonstrate the contrary. This places a burden on the Crown to show that there was no miscarriage of justice in order for the appeal to be dismissed.

[16] In a proceeding under section 686(1)(a)(iii), the onus is on the appellant to demonstrate that there was a miscarriage of justice. This section is not concerned with the characterization of an error as one of law, fact, mixed fact and law or something else, but rather with the impact of the error on the trial proceedings. An error involving a misapprehension of evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then section 686(1)(a)(iii) requires that the conviction to be quashed. (see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at paragraphs 91 and 92.)

Issue # 1

[18] The appellant says that in the circumstances present here, the roadside detention violated the appellant’s section 9 Charter rights and the trial judge gave insufficient reasons for his conclusion that it did not. Dealing firstly with the suggestion that Cst. Burnie engaged in a “ruse” to justify the detention of the appellant at the roadside, where the police detain someone under the guise of a lawful purpose when in reality they seek to accomplish an unlawful purpose, such deception can result in a Charter breach. At the same time, it is clear that a traffic stop can have dual or multiple purposes Brown v. Durham Police Force, 1998 CanLII 7198 (ON CA), [1998] 116 O.A.C. 126 at para. 31). The distinction often turns on whether there was evidence of a dual purpose that was accepted by the trial judge. In the circumstances here, the trial judge concluded that there was nothing improper in the police officer deciding to make a record of the presence of A.H. in the appellant’s vehicle, especially considering the earlier broadcast and A. H.’s vulnerability. The roadside check was minimally intrusive, the appellant was not questioned in relation to the presence of A. H. in the vehicle and the check of the appellant’s Highway Traffic Act documentation had not even been completed before the appellant drove away. The trial judge noted that Cst. Burnie’s evidence was not shaken in cross-examination on the issue of the dual purpose of the traffic stop (see Trial Transcript, Vol. 1, p. 57-58, Vol. 2, p.70, l. 5). Secondly, the trial judge’s reasons for his credibility findings respecting the testimony of Cst. Burnie are adequate because they provide sufficient basis for the appellant to know why the trial judge decided the case as he did and to permit effective appellate review.

Issue #2

[19] The appellant says the trial judge erred in law in finding that there was no breach of the appellant’s section 10(a) rights, that the appellant was entitled to be informed of the reason for his detention and further that the trial judge’s reasons for dismissing this Charter argument were inadequate and therefore an appellate court can conduct its own review.

[20] I would dismiss this ground of appeal. In R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at para. 31, Justice McLachlin, writing for the majority, said that the right to be promptly advised of the reason for one’s detention is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by section 10(b).

[21] The appellant’s position is that, in the context of a traffic stop, the police have a duty to comply with section 10(a) in advance of having an opportunity to identify the driver and to review his Highway Traffic Act documentation. The trial judge concluded, on ample evidence, that the appellant did not “hang around” long enough for Cst. Burnie to provide an explanation. He drove away in response to Cst. Burnie’s request for his documentation.

[22] As indicated in the appellant’s submissions, whether a police officer has had sufficient time to comply with his or her duty under section 10(a) is to be determined contextually on a case-by-case basis. A police officer has to have a reasonable opportunity to comply with section 10(a). Nothing more needs to be said to provide the appellant with an explanation of the trial judge’s decision. Moreover, I agree with the trial judge that the need to inform a person promptly of the reason for his detention was not breached in the circumstances here.

Issue #3

[23] The appellant says the trial judge erred in law by finding that there was no breach of section 10(b) of the Charter. This issue was not pressed in submissions. The appellant’s factum does not address this ground of appeal. The trial judge, however, referred to the section 10(b) issue in his reasons for decision, indicating that the section does not apply to traffic stops on the authority of R. v. Humphrey, 2011 ONSC 3024 at para. 109. I would dismiss this ground of appeal.

Issue #4

[24] The appellant says the trial judge erred in law in failing to address whether section 9 was violated in light of the admission by both police witnesses that they were not in pursuit of the appellant. This ground of appeal is not specifically addressed in the appellant’s factum in the context of the “police admission” but warrants some comment for the sake of completeness.

[25] A fuller appreciation of this submission is aided by a review of the cross-examination of the police witnesses. Counsel for the appellant suggested to Cst. Burnie that after the appellant drove away, he pursued the vehicle, which prompted the following exchange at pages 63 to 65 of the Trial Transcript, Vol. 1:

A. It wouldn’t have been a Criminal Code pursuit, no. I was following the vehicle with my lights and sirens engaged, but at that time it wasn’t a pursuit.

Q. It wasn’t a pursuit?

A. No, it was not a pursuit as a — under our Act and under our policies, it would not have been a pursuit. No, I hadn’t engaged him in directed contact after the fact. He pulled away from me, I activated my lights and sirens in order to follow him, but I wasn’t engaged in a pursuit with him.

Q. You advise other officers that he’s fled from the scene?

A. That he’s taken off from the scene, yes. I believe the words I used was, ‘’He took off on me,” right over the air, yes

Q. I understand. And you tell them that he still has a known prostitute on board?

A.Yes

Q. And that you’re going to be following him. Is that correct?

A. I’m going to be trying to catch him, yeah.

Q. But not pursuing him?

A. No, it’s not a — the word pursuit in a police word has a specific connotation. It’s somewhat like, you know, a high speed pursuit on t.v. kind of thing, where there’s a vehicle fleeing, there’s a police officer behind, or multiple police cars behind, lights and sirens activated, and the driver of the suspect vehicle is refusing to pull over or failing to pull over.

At this time when Mr. Jensen had left the scene, I lost sight of him after one turn. I was no longer in pursuit, I was unable to maintain a following of his vehicle.

Q. But you were trying, weren’t you doing 60 to 80 kilometres an hour?

A. Yes

Q. You were trying to pursue him?

A.I was trying to catch up to him. I was trying to find him, yes.

Q. Now, when you were trying to follow the vehicle, you were trying to catch the vehicle though, right?

A. I was best guessing as to where I think he would have gone in order to catch up to the vehicle, yes.

Q. To stop the vehicle?

A. To stop the vehicle, yes.

[26] Crown counsel posed similar questions to Cst. Neilson, the first police officer to arrive at the parking lot where the appellant was found, at page 96 to 98:

Q. All right. You were working on the evening of August 17th, 2012 Constable?

A. Yes Sir.

Q. And on that evening you were in uniform capacity?

A. Yes.

Q’ Driving a marked police cruiser?

A. Yes.

Q. And you received information during the course of your duty that a Hyundai had fled from Constable Burnie. Is that correct?

A. That’s correct .

Q. The only other information that you received was that A.H. was on board?

A. No, I received that it was a newer model black Hyundai Elantra, and it — the licence plate BNKA565.

Q. I’m sorry, so you knew that a vehicle had fled from Constable Burnie?

A. Yes.

Q. You knew what kind of car it was?

A. Yes.

Q. You knew the licence plate?

A. Yes.

Q. And you knew the passenger ?

A. We knew the passenger, yes.

Q. Okay. So that’s what you know when you’re reporting to this call Sir?

A. Yes.

Q. Thank you. In response to all of this, you add yourself to the call. Is that correct?

A. I believe so. Yes Sir.

Q. As you were travelling south on Olmstead, I understand you saw the emergency lights of another vehicle sir?

A. Yes, further down Olmstead I saw the emergency lights of a cruiser.

Q. Were you pursuing the suspect Sir?

A. No Sir, I didn’t have the suspect vehicle in sight.

Q. But in responding to this information and going to the area, you’re trying to catch the vehicle, aren’t you?

A. I would agree with that on a – in a form. I’m trying to find the suspect vehicle certainly. But at the point where I’ve added myself to the call, I didn’t see the suspect vehicle anywhere.

Q. No, no, I understand that. I’m just trying to understand—we’re trying to help the Court understand why you are responding to this call and what your goals are. And your goals ultimately, if you can, to apprehend the suspect. Right?

A. Well, I’ll certainly pull over the suspect vehicle, yes.

[27] The appellant’s position is that based on this evidence the appellant wasn’t “pursued” within the meaning of the relevant section of the Criminal Code and that this contention is reinforced by the officers’ agreement that they were not engaged in a pursuit. It is not clear what Cst. Burnie had in mind when he referred to our Act but it is reasonable to infer that the policy he referred to was the Ottawa Police Service Suspect Apprehension Pursuits policy which was marked as a trial exhibit.

[28] The trial judge concluded that “pursuit” should be given its common everyday meaning and that the police policy definition of a pursuit arrest did not assist in determining the meaning for the purposes of the Criminal Code. He said that the everyday meaning of pursuit is an act or intention of pursuing.

[29] The appellant relies upon the Ontario Court of Justice decision in Kagayalingam,2006 ONCJ 402, [2006] O.J. No. 4334 for assistance respecting the proper meaning of “pursuit”. In Kagayalingam the police began following a badly damaged vehicle being operated by an impaired driver who had just left the scene of the accident that had damaged the car. The patrol vehicle followed the subject vehicle a total of about .9 kilometres at a speed of 40-50 km. per hour, well below the speed limit. The roof lights of the patrol vehicle were activated. The trial judge found that the driver was aware the police were following him, that he went through a red light and changed lanes several times with the patrol vehicle following behind, then came to a stop. The trial judge held that the police chose to stay back from the subject vehicle and that the police officer could have overtaken the subject vehicle at any time if he had wished to. He concluded that the police had been engaged in following the accused and were not trying at that time to overtake him prior to the accused stopping his vehicle. The trial judge referred with approval to the dictionary meaning of pursue as being the act of following with intent to overtake. He found that the “intent to overtake” element was missing. Assuming without deciding whether intent to overtake is an essential element of the offence, there is ample evidence here to support the view that the police intended to overtake the appellant’s vehicle.

[30] The appellant also referred to R. v. Harms, [2005] M.J. No. 133 (Q.B.) where Nurgitz J. said in obiter that section 249.1(1) anticipates the pursuit of a person where there are grounds to suspect an offence having been committed. The appellant submits that there was no predicate offence present here to support a conviction. A review of the reasons for decision in Harms discloses that the acquittal in that case turned on a finding that the accused did not know he was being pursued. I would hold that a requirement to suspect the presence of a predicate offence is not an essential component of an offence under section 249.1. I agree with the trial judge that there is sufficient basis in the evidence to find that the appellant intended to evade the police and knew that the police were pursuing him. In my view, the initial roadsidestop fulfils the requirement that the appellant be aware that he is being pursued. He pulled over in response to Cst. Burnie’s direction to do so but then sped away in order to evade him before the interaction was completed. Additionally, the appellant could not have reasonably thought that such action would not result in the police further pursuing him.

[31] Finally, I note and rely upon the recent decision of our Court of Appeal in R. v. Quinn, 2014 ONCA 650 where the appellant was found guilty of an offence under section 249.1 in circumstances that involved several police vehicles attempting to “box-in” the appellant’s car. On appeal, the court referred to the trial judge’s reliance upon the dictionary meaning of pursue, namely, to follow with intent to overtake or capture and commented on the essential elements of the offence at para. 10 as follows:

“While not deciding the outer limits of s. 249.1 of the Criminal Code, we agree with the trial judge. This fast-paced event should not be viewed on a frame-by-frame basis. The police were pursuing the appellant in their vehicle. He failed without reasonable excuse- and in order to evade police- to stop the vehicle as soon as reasonable in the circumstances.”

[32] I would dismiss this ground of appeal.

Issue #5

[33] The appellant says the trial judge erred in law by admitting evidence which emanated entirely from the unconstitutional roadside detention. As indicated above, in my view the trial judge did not commit a reviewable error in finding that there were no Charter breaches.

Issue #6

[34] The appellant says the trial judge erred in law by misapprehending the essential elements of section 249.1 of the Criminal Code by failing to advert to a duty qualification such that the section should be read to include a requirement that the peace officer referred to in the section must be acting in the execution of his or her duty. Referring to other sections of the Criminal Code that criminalize certain aspects of the police/citizen encounter as examples, the appellant submits that citizens have a right to resist unlawful attempts by state actors to interfere with their liberty. Parliament’s failure to include the words “in the execution of his or her duty” when this provision was drafted is an oversight that should be corrected by judicial intervention.

[35] Having determined that the police did not exceed their authority or commit a Charter violation, there is no implied duty qualification that ought to be read into the essential elements of the offence.

[36] Further, I accept the submission of Crown counsel that absent a constitutional challenge to the legislation itself, the court does not have authority to “read in” or insert a requirement that is not specified in the statute to make it conform to the Charter.

[37] In summary, the trial judge correctly determined the elements of the offence in question and concluded on adequate evidence that the appellant was guilty. I would dismiss the appeal.

Honourable Justice Martin James

Released: March 9, 2015

CITATION: R. v. Jensen, 2015 ONSC 1040

COURT FILE NO.: 12-12036

DATE: March 9, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

SEAN JENSEN
Appellant

REASONS FOR JUDGMENT

Honourable Justice Martin James

Released: March 9, 2015