Court File and Parties
COURT FILE NO.: CR-12-01908G DATE: 2016-04-28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – RICKY DESOUSA Defendant
COUNSEL: Jennifer Gleitman and J. Lee, for the Crown Kerry P. Evans and Stephanie Boydell, for the Defendant
HEARD: February 29, March 1-4, 7, 8, 10, 15-17.
REASONS FOR DECISION
GILMORE J.:
Introduction and Overview
[1] A somewhat routine takedown of two robbery suspects in December 2010 turned into a violent confrontation between police and the driver of a van, the accused Ricky DeSousa (“Mr. DeSousa”). Shots were fired, officers and both the accused and his passenger were injured. All of the vehicles involved were extensively damaged. It is alleged that Mr. DeSousa attempted to murder two police officers in the course of attempting to escape the vehicular takedown. Mr. DeSousa’s position is that he had no such intention. He alleges that he did not know the persons involved were police officers as they had no insignia or identification. He believed his life was in danger and he was attempting to save himself from being shot, seriously injured, or worse. This trial, which took place over 11 days, relates to Mr. DeSousa’s charges in relation to this incident.
[2] Mr. DeSousa has been charged with attempting to murder Detectives Frank Abreu and Doug Bedford while committing an aggravated assault. He has also been charged with failing to stop his vehicle in the course of a police pursuit (s. 249.1(2) of the Criminal Code, R.S.C. 1985, c. C-46) and aggravated assault of Detective Abreu in the course of his duties (s. 270.02 of the Criminal Code). Mr. DeSousa has been in custody since he was arrested on December 10, 2010.
[3] Mr. DeSousa elected a trial by jury. After the jury was selected and following Mr. DeSousa being put in charge of the jury, certain circumstances lead to a mistrial being declared on consent of the Crown and Mr. DeSousa. Following that, Mr. DeSousa was re-arraigned and re-elected to be tried by a judge alone.
[4] The only evidence given in this trial was the evidence of the four police officers involved in the surveillance and apprehension of Mr. DeSousa. The defence did not call any evidence.
Factual Background
[5] The factual background in this case can be broken down into three separate time periods: the surveillance on Mr. DeSousa leading up to the takedown, the rolling block takedown on Weston Road, and the pursuit and arrest of Mr. DeSousa after the takedown. It is only the rolling block takedown that relates to the offences before the court. However, the lead up to the takedown and the resulting actions of the accused and officers provides context and narrative.
[6] The evidence referred to above was given by the Crown witnesses, Detective James Martin (the team leader on the evening of the takedown), Detective Frank Abreu, Detective Doug Bedford, and Constable Steve Borovskis. All of these officers were and still are members of York Regional Police (“YRP”). At the time they were all members of the hold-up squad of YRP. That unit was in charge of investigating retail and financial institution robberies, home invasions, and carjackings.
[7] During the course of the events that took place in the late evening of December 9, 2010 and the early morning of December 10, 2010, the officers were in communication by both police radio and cell phone. The recounting below is a summary based on the officers’ evidence including their own observations and information received from other team members which they recorded in their notebooks.
The Surveillance Leading to the Takedown
[8] As of December 7, 2010, Mr. DeSousa was a suspect in a series of knifepoint gas station and convenience store robberies. The robberies had taken place in the York and Halton Regions, Bolton, and Toronto. The suspect was seen on video and attempts were made to locate the burgundy Dodge Caravan that was used in the robberies. Police had been able to determine that the van license plate was ADHB 719. A second suspect was thought to be involved in the robberies but he had not been identified.
[9] Detective Martin began investigating Mr. DeSousa. He reviewed his criminal record and CPIC entries. Mr. DeSousa’s record included convictions for three robberies for which he was given a concurrent sentence of one year in November 2009. He was also a prohibited driver for reason of unpaid fines. Detective Martin determined that the van used in the robberies was owned by Mr. DeSousa’s parents. His parents had been contacted by Detective Bedford and advised that their son, Ricky DeSousa, had borrowed their van two weeks prior, had not returned it, and had not been seen for a week. Information was placed on CPIC with respect to Mr. DeSousa including a description of him and the van.
[10] By December 8, 2010, the investigation had become a priority when the suspect van became involved in a police pursuit by Peel Regional Police (“PRP”). As team leader, Detective Martin decided on December 9, 2010, that his team was to focus on finding and arresting Mr. DeSousa. He instructed Detective Abreu to prepare the paperwork to issue a warrant in the event that they were unable to locate Mr. DeSousa. Mr. Martin had received reports and met with detectives from other police forces, rendering him confident that the suspect was Mr. DeSousa.
[11] Detective Martin assembled a team that included Detectives Bedford and Abreu and Constables Borovskis and Pleskina. They were given information about Mr. DeSousa and the robberies, including his criminal history and a photo. They were also given a description of the suspect van, as well as its licence plate number. Warnings were given that he could be armed with a knife given that the robberies were committed at knifepoint.
[12] Surveillance was conducted at Mr. DeSousa’s girlfriend’s residence at 24 Tianalee Crescent in Brampton, his last known residence at 36 Olive Court in Brampton, and at 20 Prouse Drive, the address of a possible associate of Mr. DeSousa’s, Antonia DaSilva (“Mr. DaSilva”). Detective Martin had obtained information about Mr. DaSilva from a PRP report which documented finding Mr. DaSilva’s fingerprints on a pop can in a hotel room crime scene in which Mr. DeSousa had been involved. He had also obtained his driving, CPIC, and criminal record from Detective Verone with PRP earlier in the evening on December 10. Detective Martin strongly suspected that Mr. DaSilva was linked to the robberies because of his criminal history, his association with Mr. DeSousa, and the fact that at least one of the robberies had involved two people. However, there was nothing linking Mr. DeSousa and Mr. DaSilva other than the PRP report about the fingerprints. Further, there was nothing in Mr. DaSilva’s criminal history that indicated he was violent or had used weapons in the course of any offences. More investigation needed to be done in relation to Mr. DaSilva to determine whether his involvement in the robberies could be confirmed.
[13] The officers operated unmarked police vehicles and were in plain clothes. Detective Martin was driving a black Dodge Ram truck. Detective Abreu drove a silver Pontiac G6. Detective Bedford drove a grey Ford Escape and Constable Borovskis was assigned a black Dodge Caravan. Each officer had his bulletproof vest with him available to put on when needed. The bulletproof vests contained pouches for the officers’ use of force equipment and had the word “POLICE” emblazoned in large letters on the front and back. Detective Martin was clear that the intentions of the police that night were twofold: to further the investigation with respect to Mr. DaSilva as a possible suspect and to arrest Mr. DeSousa.
[14] Around 9:00 p.m. Detective Martin saw the suspect van bearing plate number ADHB 719 on Prouse Drive. The van drove past Detective Martin. He was able to identify Mr. DeSousa from photographs he had received during the course of the investigation. Detective Martin began to follow the DeSousa van but eventually lost it. At 1:10 a.m. Constable Borovskis reported that a male had left 20 Prouse Drive on foot. Detective Bedford followed him to a local park where he was observed smoking a cigarette. He then returned to 20 Prouse Drive on foot. Officers suspected the male was Mr. DaSilva but could not confirm his identity. By this point in the evening, all team members had gathered in the area of 20 Prouse Drive to conduct surveillance.
[15] At 1:25 a.m. Constable Borovskis reported that he saw the suspect van pull into the driveway at 20 Prouse Drive and pick up a passenger. Detective Bedford did a drive-by to confirm that the van plate accorded with their information. The other officers gathered in the surrounding area. At 1:42 a.m. the suspect van left 20 Prouse Drive with Mr. DeSousa driving. The identity of Mr. DeSousa is not at issue in this case. The officers believed that his passenger was Mr. DaSilva but were not certain. The team followed the van being careful to position themselves so the surveillance would not be compromised. This involved having different officers, in turn, fulfill the role of the “eye” or lead car in the surveillance.
[16] The officers followed the van to the 401 and down Black Creek Drive to Weston Road and Rogers Road, where it pulled into parking lot adjacent to a Petro-Canada gas station. It was parked such that the driver of the van could see the gas station, but the van could not be seen from the door of the convenience store.
[17] The officers’ evidence diverges at this point as to what happened next. Neither Detective Martin nor Detective Abreu was in a position to see the van. Detective Bedford testified that the gas station was closed, but he nonetheless drove by the station and could not see the van. The evidence is unclear as to whether the passenger got out of the van or not, as the only officer that could see the van was Constable Borovskis. He testified that the van simply sat in the lot for two to three minutes. Constable Bedford testified that he was told that the passenger got out of the van and came back shortly after. It is unclear who told him this since neither he nor detectives Abreu and Martin could see the van and Borovskis did not report seeing the passenger leave the van.
[18] The suspect van left, went northbound on Black Creek Drive, and continued onto Scarlett Road where it pulled into an Esso gas station at Scarlett Road and Edenbridge Drive. The van moved slowly around the perimeter of the parking lot and toward the kiosk parking parallel to the gas station in front of the kiosk door. The passenger got out. The team began to close in thinking a robbery was about to be committed. However, Detective Abreu observed a male run out of the kiosk and get into the passenger side of the van. The planned takedown at that point was aborted.
[19] The van left the Esso station at about 2:20 a.m. and went south on Scarlett Road. It turned into a subdivision, went down a dead end street, and made a U-turn. The van was also making abrupt stops. The van’s manoeuvers led the officers to believe their surveillance was compromised. Unfortunately, the officers lost the van at this point.
[20] Detectives Martin, Bedford, and Abreu were convinced that Mr. DeSousa intended to rob another gas station given his “casing” of the gas stations on Weston Road and Scarlett Road, as well as the identification of Mr. DeSousa’s van as the vehicle seen at the prior robberies. Detective Martin interpreted Mr. DeSousa’s driving around aimlessly as a form of counter-surveillance manoeuvre. The officers agreed that Mr. DeSousa did not drive in a dangerous manner and obeyed traffic laws during the course of the surveillance.
[21] Detective Abreu testified that by the time he got to the Esso station, he had taken out the police crest and insignia on his plain clothes kit. The “kit” includes a jacket with concealable police identification which can be pulled out of the breast pockets. In addition, the word “POLICE” is on the back of the jacket but can be concealed with a panel. The panel was open in order to reveal the word “POLICE”. He was also wearing his plainclothes holster with police-issued Glock semi-automatic pistol, a handcuff pouch, and a spare ammunition magazine. Detective Abreu was wearing his police vest under his jacket. The vest contained pouches with pepper spray and a baton. The vest has the words “POLICE” in large letters on the front and back.
[22] Detective Martin told the court that he put his police vest on before he left 20 Prouse Drive. He wore a loose shirt over the vest while driving to maintain his cover. He had been wearing his use of force kit all day. Detective Bedford put on his police vest and his use of force options as the van was leaving 20 Prouse. Like Detective Martin he put his coat on over his vest so his police identification could not be seen as he was driving. The vest he was wearing that evening is shown in Exhibits 22a and b. Constable Borovskis also had his police vest with him in the car. He is not certain when he put it on but notes it was before the rolling block takedown. He also had all his use of force equipment with him. The officers were all carrying a firearm in a plainclothes holster.
[23] Mention should be made that the conditions on that evening, December 10, 2010, were dry and clear. By the time the officers arrived at Weston Road it was past 2:00 a.m. All of the officers stated in their testimony that mobile surveillance was difficult because there were virtually no cars or pedestrians given the time of day. There was a constant concern that the mobile surveillance would be compromised because of those conditions.
[24] The suspect van was re-located by Constable Borovskis about 10 minutes after it left the Esso station. He located it near Jane and Bloor Streets in Toronto. Mobile surveillance tracked the van to Weston Road again. At a certain point on Weston Road, Detective Martin gave the order to commence a rolling block takedown.
The Rolling Block Takedown
[25] After the DeSousa van left the Esso station it travelled south on Weston Road. During this time Detective Martin called for a rolling block takedown via police radio around 2:35 or 2:40 a.m. He made that decision for several reasons. First, from a public safety perspective, a rolling block takedown was better than a vehicle pursuit. Second, he had had reasonable and probable grounds to arrest Mr. DeSousa as of December 7, 2010. The robberies were increasing in frequency and in a widening geographical area. Two victims had been assaulted in the course of the robberies. Detective Martin had observed Mr. DeSousa and his passenger that evening and was certain their behaviour indicated that they intended to commit more robberies. He called for the rolling block takedown in an area on Weston Road where he observed no cars or pedestrians.
[26] A rolling block takedown is meant to bring a suspect vehicle to a safe stop so that the suspect can be called out and an arrest made. At least three vehicles are needed for a rolling block takedown. It is a technique that uses the element of surprise when police have reasonable grounds to believe that a suspect may flee. The use of a rolling block prevents a suspect from using evasive action. Once stopped, police take cover behind their own vehicle and call out the suspect using standard police commands. The arrest is then effected. Based on the PRP report of a previous vehicle pursuit involving the DeSousa van, police were concerned about Mr. DeSousa’s compliance. Detective Martin knew that Detectives Abreu and Bedford and Constable Borovskis had their vehicles in the area. Four vehicles were more than enough for a rolling block takedown because they would easily be able to prevent escape of the suspect van. All of the officers involved had received training in rolling block takedowns and had been involved with some or many during their careers.
[27] Detective Martin knew the unmarked vehicles were equipped with portable police emergency lights. None of the officers used their lights before, during or after the rolling block. Either they did not have time to turn them on or they thought that the surveillance had been compromised and Mr. DeSousa already knew they were police. Detective Martin was concerned that engaging their emergency lights in advance would have possibly led to a suspect vehicle pursuit. He wanted to avoid this for public safety reasons. As well, the time period between the commencement of the rolling block and Mr. DeSousa’s escape down Weston Road was only 30 to 60 seconds. The entire event happened extremely quickly. There was no time for a relaxed consideration of options.
[28] Although all of the officers were familiar with the rolling block procedure, they testified that suspects are generally compliant with police commands in the course of the takedown. None of the officers had been involved in a rolling block take down like this one where the suspect vehicle intentionally crashed into police vehicles and the suspect ignored police commands.
[29] Just prior to the order for a rolling block takedown, the DeSousa van was travelling in the curb lane of the two southbound lanes. Detective Martin instructed his team that he would position his truck in front of the van. Detective Abreu told the officers he would take the left driver side. Detective Bedford took the rear. Detective Martin manoeuvred his truck in front of the van and slowed down quickly. As the police vehicles began to slow down and box in the van, Detective Abreu noticed the van accelerate and hit Detective Martin’s truck in an attempt to escape the block. Detective Martin put on his brakes and began to reverse into the van so it could not move. He wanted to maintain contact with the DeSousa van as it was clear to him that Mr. DeSousa was not stopping. Detective Abreu testified that the van was accelerating, trying to push his vehicle out of the way and squeeze between his vehicle and Detective Martin’s truck. Constable Borovskis moved in and plugged the hole so that the van could not escape. Both Detective Abreu and Constable Borovskis were trying to pin the van to Detective Martin’s truck.
[30] At this point Detective Martin noted that Mr. DeSousa was revving his engine which caused the van and Detective Martin’s truck to rock back and forth. From inside his truck, Detective Martin could hear the tires spinning and squealing and he could hear Abreu and Bedford yelling commands such as “Don’t move,” “Show us your hands,” “Turn off the van,” and “You are under arrest.” Detective Martin began to smell rubber and see smoke from the squealing tires. He was unable to see anything going on behind him and was intent on maintaining contact with the van so it could not escape. At this point, during the chaos of the smoke, squealing tires, and revving engine, Detective Martin heard four shots being fired: two in quick succession and then another two. He did not know who fired the shots. The next thing he knew, the van had escaped the rolling block and was passing him.
[31] While the van was pinned and revving its engine and squealing its tires, Detective Abreu got out of his vehicle to effect the arrest. By this point Detective Abreu had taken out the police insignias on his vest and jacket. He had on his bullet-proof vest and a jacket with the word “POLICE” on the back. Thinking the van was immobilized; he stood on the driver’s side of his vehicle, drew his gun, and began to loudly shout police commands so he could be heard over the revving engine and screeching tires. When neither the driver nor the passenger got out of the van, Detective Abreu approached the driver side door of the van. He observed Mr. DeSousa looking around and moving his mouth but he could not hear what he was saying. Mr. DeSousa continued to accelerate and was not responding to Detective Abreu’s commands even when he was within a few feet of the van. Assuming that Mr. DeSousa could not hear him, Detective Abreu smashed out the driver’s side window of the van with the butt of his gun. Mr. DeSousa continued to look around and rev his engine.
[32] Detective Abreu was concerned that the van was becoming a threat to public safety so he reached in to pull Mr. DeSousa out of the van. At that point he thought he saw a knife in Mr. DeSousa’s hand so he released Mr. DeSousa and stepped back from the van. At that moment, the van broke free, and started to reverse. As Detective Abreu stepped away from the van, he felt something hit him in the torso with a lot of force but not enough force to knock him down. He observed the van reverse and go over the sidewalk towards a fence.
[33] As the vehicle reversed, Detective Abreu could not see Detective Bedford but was aware he was out of his vehicle. He was concerned that with all of the smoke and noise Detective Bedford would not see the van coming and be run down by it, so he shot at the tires on the front driver’s side of the van three or four times. He had never had to fire his pistol in the course of his police career before that moment.
[34] Detective Abreu moved towards the van still issuing loud commands, pointing his gun at Mr. DeSousa, and yelling for him to get out of the van. He could hear other officers yelling similar commands but could not see them because of the smoke. Detective Abreu was concerned that his partner, Detective Bedford, had been hit or even run over by the van. He was not certain. At this point Mr. DeSousa put the van into drive and drove straight towards Detective Abreu. Detective Abreu fired shots directly at Mr. DeSousa and jumped out of the way. His evidence was that if he had not moved out of the way he would have been run over by the van. As the van was coming towards him, Detective Abreu heard other shots but could not tell where they came from. He heard glass shattering on the van and then saw it fleeing southbound on Weston Road.
[35] Detective Abreu testified that he had never been involved in a rolling block with this degree of non-compliance. In his experience, suspects usually gave up with minimum resistance. However, in this case, Detective Abreu felt that Mr. DeSousa was a threat to other officers and to public safety. He shot at Mr. DeSousa because the threat he created needed to be stopped.
[36] Detective Bedford testified that he was positioned at the rear of the rolling block. When the van braked suddenly, he saw it hit Detective Martin’s truck and then he hit the van unintentionally. He saw the van swerving and hitting Detective Abreu’s and Constable Borovskis’ vehicles. Detective Bedford had a good view of what was going on. He told his other team members to tighten up the block as it appeared that Mr. DeSousa was not compliant and trying to escape. The situation was very dynamic and the van was hitting all of the vehicles around it. When everyone finally came to a stop, the vehicles were positioned as per the diagram in Exhibit 24. Detective Bedford’s vehicle was facing the rear corner of the van. The van was completely blocked in but Mr. DeSousa was changing from drive to reverse, spinning his wheels and trying to get free. At this point Detective Bedford got out of his vehicle. He was wearing his police vest with his police badge clipped to the front of the vest. He saw Detective Abreu get out of his vehicle and approach the driver’s side door of the van while yelling commands. Detective Bedford and Constable Borovskis were together and also loudly yelling the same type of commands. The scene was very noisy because of the van’s screeching tires.
[37] As Detective Bedford approached the van, he saw Detective Abreu smash out the driver’s window. The area became smoky from the squealing tires as Detective Bedford moved towards the front of the van. He faced the van and continued yelling commands. He was certain he was heard by Mr. DeSousa who took his hands off the wheel and raised them in the air as commanded as if in a gesture of surrender. However, this only lasted a few seconds. Detective Bedford was able to make eye contact with Mr. DeSousa and saw his face change from an attitude of surrender to a determined, aggressive stare. Detective Bedford testified: “I read his body language that he wasn’t going to stop. He looked right through me; very chilling eye to eye contact—I knew from his body language that he had decided not to give up.”
[38] Detective Bedford then drew his firearm, pointed it at Mr. DeSousa and continued yelling commands at him. Detective Abreu was yelling commands at the same time. Mr. DeSousa continued to rock the vehicles by spinning his tires and accelerating. He was not saying anything but was accelerating so hard that the engine governor was kicking in and killing the engine at times. The area was now smoke-filled. Mr. DeSousa was gaining momentum and moving his vehicle more and more. He was then able to move his vehicle enough that he turned it towards where Detective Abreu was standing although Detective Bedford could not actually see Detective Abreu because of the smoke. The van then broke free and Detective Bedford was certain it would hit Detective Abreu and crush him or run him over, so he shot his firearm in the direction of Mr. DeSousa. Detective Bedford testified that this was an adrenaline-filled moment and he cannot recall how many shots he fired.
[39] When the van broke free, Mr. DeSousa had his foot on the accelerator so the van launched backwards over the curb and into a fence and residential backyard. Detective Bedford was concerned that Detective Abreu had been injured so he moved towards the van screaming at Mr. DeSousa to shut off the van. Instead, Mr. DeSousa floored the van and drove straight at Detective Bedford. The van got caught in some fencing so Mr. DeSousa reversed and then drove forwards toward Detective Bedford again at a high rate of speed. Detective Bedford began to shoot at the driver’s side of the van. He was not sure how many times but possibly up to nine shots. The van then drove up the sidewalk towards Detective Martin’s truck and Detective Bedford shot at the van again as it was passing in front of him at least two more times. He shot at the van because he thought Mr. DeSousa had killed his partner and had tried to kill him by running him over.
[40] Detective Bedford saw the van take off southbound down Weston Road. He was shocked to see Detective Abreu standing just to his right and apparently unharmed. They all ran to their vehicles to pursue Mr. DeSousa.
[41] Constable Borovskis was going about 70 kilometres per hour down Weston Road when Detective Martin called for the takedown. He positioned himself at the front corner of the driver’s side of the van. Constable Borovskis had been involved in about five rolling block takedowns by this point in his career.
[42] Once the van had stopped, Constable Borovskis got out of his vehicle and went around to the front of the van so he was facing Mr. De Sousa. He had his gun drawn and pointed and was yelling at Mr. DeSousa to turn off the van. Constable Borovskis testified that Mr. DeSousa had a frozen look on his face as he lifted his hands off the wheel and put them up in a gesture of surrender. Mr. DeSousa was not saying anything. Constable Borovskis noticed Detective Abreu coming up to the driver’s side front door of the van while yelling commands. Suddenly, Mr. DeSousa’s demeanour changed and he grabbed the steering wheel again. Constable Borovskis described this change as a complete flip of the switch for Mr. DeSousa. Constable Borovskis then saw Detective Abreu smashing in the driver’s window and lean his upper body into the van through the driver’s window engaging with Mr. DeSousa. Mr. DeSousa was flooring his accelerator, making his tires spin and smoke and engaging the engine governor.
[43] By this point, the air was filling with smoke and visibility was getting worse. Mr. DeSousa was rocking the van back and forth to the point that Constable Borovskis was concerned that if it broke loose he would be run over and Detective Abreu would be seriously injured or killed. Detective Borovskis noticed the van was building momentum and about to break free of the block. He drew his firearm and was about to shoot when he saw Detective Bedford’s shoulder in front of him. He stepped to the side and heard four to five gun shots. He did not know where the shots came from. He did not shoot his gun. His decision to draw his own firearm was made because he was certain the van would break free and run over both he and Detective Abreu. The van then reversed towards the curb and the smoke lifted. Constable Borovskis saw Detectives Abreu and Bedford standing on the road.
[44] Constable Borovskis got into his car to pursue the van southbound. He noted the van had been damaged and was not operating properly.
The Post-Takedown Pursuit
[45] When the van escaped the rolling block it went south on Weston Road at no more than 50 kilometres per hour. The van’s right rear tire had been flattened down to the rim and it had no visible lights front or back. All of the officers pursued the van and as it did not pull over or comply, the police engaged in a Suspect Apprehension Pursuit (SAP). During the course of this pursuit, Detective Abreu pulled to the side of the van to pin it. Mr. DeSousa changed lanes, forcing Detective Abreu into the oncoming northbound lane of traffic. After a pursuit of about half a kilometre, the van tried to turn left on Ray Avenue but overshot the turn, slid through the intersection and bounced off the northbound curb on Weston Road.
[46] Detective Martin deliberately struck the driver’s side front quarter panel of the van in order to incapacitate it. Constable Plaskina (who was part of the team that night but had not been involved in the takedown) struck the back of the van around the same time. Detective Bedford struck the van on the driver’s side but his contact was not intentional. As the van started to turn left onto Ray Avenue, it went in front of Detective Bedford’s vehicle and contact was not avoidable. Intentional contact with a suspect vehicle in this manner is used as a last resort to prevent an offence and where the intentional contact outweighs the risk to public safety.
[47] Although the van was blocked in by this point, Mr. DeSousa was rocking it and squealing the tires. Detective Martin got out of his truck and stood using his truck door as cover. He aimed his firearm at the van and yelled at Mr. DeSousa that he was under arrest and to put his hands in the air. Detective Abreu pulled Mr. DaSilva out through the passenger window assisted by Constable Borovskis. Mr. DaSilva was screaming, “He’s a fucking crazy driver.”
[48] Mr. DeSousa did not comply with the command to turn off the van. He kept on squealing his tires and revving the engine even though the van was not moving. Detective Abreu then jumped into the van through the passenger window so he could take Mr. DeSousa’s arms off the wheel. Mr. DeSousa would not comply and he and Detective Abreu struck one another a few times. The struggle lasted about ten seconds. Detective Abreu did not deny that in the course of this struggle he hit Mr. DeSousa in the face a few times. Throughout the struggle, Mr. DeSousa was screaming but Detective Abreu could not make out what he was saying.
[49] Once Mr. DeSousa was on the ground, Detective Bedford and Detective Martin went to help Detective Abreu with the arrest. All of the officers were yelling at Mr. DeSousa to show them his hands. Mr. DeSousa was screaming and fighting against the officers. When he failed to comply with the officers’ commands, Detective Martin struck Mr. DeSousa in the kidneys three to four times so his hand could be freed up to effect the arrest. In the course of handcuffing Mr. DeSousa, Detective Martin and Detective Abreu noticed he had an injury to his hand. They later learned that the ring finger of his left hand had been shot off.
[50] Constable Pleskina and Borovskis were trying to handcuff Mr. DaSilva. He was injured and yelling out “He is a fucking crazy driver” while on the ground. He was being combative so Detective Bedford kicked him in the ribs three or four times so he would free up his hands.
[51] Eventually both Mr. DeSousa and Mr. DaSilva were arrested and handcuffed. Mr. DaSilva had a gunshot wound to his head and there was blood. Detective Abreu had broken his hand and was sent to hospital with both Mr. DaSilva and Mr. DeSousa. By this point, dispatch had been called. The officers knew that there would be an SIU investigation because shots had been fired. They were instructed not to speak to one another about the events.
THE BURDEN AND STANDARD OF PROOF
[52] As the accused in this case did not testify, the court must instruct itself only on the final step of the required analysis in R. v. W.(D.), [1991] 1 S.C.R. 742. That step requires the court to consider the totality of the evidence it accepts and whether the court is left in any reasonable doubt about the guilt of the accused based on that evidence.
[53] In this case, as in all criminal cases, the Crown bears the legal burden of proving the essential elements of the offences charged beyond a reasonable doubt. Where the case involves circumstantial evidence, such as the case at bar, this court must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.
[54] In a case involving circumstantial evidence the court must be careful to differentiate between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture. Therefore, at all times the trier of fact must be alert to an explanation or contradiction pointing towards innocence.
[55] Circumstantial evidence must not be evaluated piecemeal but, rather, cumulatively. A trier of fact’s application of logic, common sense, and experience to the evidence engages the consideration of inherent probabilities and inherent improbabilities and often eliminates the likelihood of coincidence. R. v. Harris, 2012 ONSC 27, at para. 62.
[56] In summary, this court must be able to conclude on all of the evidence it accepts, that Mr. DeSousa’s guilt is the only conclusion available.
ASSESSING THE OFFICERS’ EVIDENCE
[57] It is important that the trier of fact recognize that there is a distinction between the veracity or truthfulness of a witness (credibility) and the ability of a witness to accurately relate his or her evidence (reliability). Both reliability and credibility are important aspects with respect determining the truth and accuracy of any witness’ testimony. It is also important to note that a credible witness may not always be a reliable one and that a witness whose testimony is not credible on a particular point will also not be a reliable witness on the same point.
[58] The reliability of a witness can be affected by a number of factors. The most important factors include the witness’ ability to correctly observe, process, interpret, retain, and recall information correctly. Other factors may include whether the witness was experiencing stress, fear or fatigue. One must also consider whether the witness is intelligent, whether they have listened to other people or the media’s account of the events, or whether there are other external factors that may affect their ability to recount an event. Is the passage of time a factor? Are there discrepancies between what the witness said at trial and what they said at a preliminary enquiry or in an out-of -court statement? Does the witness have an independent recollection of the events or are they relying solely on notes? This is not an exhaustive list of considerations; there are many other factors that can affect reliability, such as, for example, testimony from a witness who was under the influence of alcohol or drugs at the relevant time.
[59] Turning to credibility, there are certain indicia of credibility that the trier of fact can use to determine a witness’ truthfulness. Examples include a criminal record containing offences of dishonesty, some motive or interest in the outcome of the trial, bias, conduct, demeanour, collusion, or glaring inconsistencies in prior statements. Some or all of these factors may combine to lead a trier of fact to conclude that a witness’ evidence can be accepted as part of the fact finding process or not.
[60] Turning to the case at bar, I find that the officers’ evidence can be accepted by this court as both reliable and credible. I do so for the reasons set out below:
(a) All of the officers were experienced members of York Regional Police. Three out of four of them were high-ranking detectives with decades of experience. While being a police officer does not automatically translate to being a reliable and credible witness, it can certainly be said that none of these officers were unsavoury witnesses or had any known history of dishonesty.
(b) I do not accept, as inferred by the defence, that the officers colluded about their evidence. As this matter was investigated by the SIU, they were bound to refrain from discussing the matter between themselves. I accept that they were instructed on this by Detective Martin and took that instruction seriously.
(c) None of the officers were disciplined or criminally charged in relation to this matter. Even if their actions did not accord in some ways with their training or protocols, they were clearly considered by other authorities to be within an acceptable range.
(d) The officers were honest and forthright about the fact that there were times during the takedown that they could not see anything because of smoke and that everything happened so fast during the takedown that it was somewhat difficult to completely deconstruct it for note-taking purposes. They were also clear that their notes were made up of their own observations as well as observations of other officers as received by them via radio or cell phone communication.
The Officers’ Notes
[61] With respect to the contradictions in the officers’ testimony raised by the defence, I concede that they certainly exist. Indeed it would be rare for four accounts of the same incident to be identical. Addressing the defence’s concerns in turn, I find as follows:
[62] The defence took issue with the notes of Detectives Martin and Bedford. Their position is that the officers have a duty to record all elements of an event and cannot pick and choose what they record. Detective Martin testified that he put everything in his notes that he did, saw, and recalled to the best of his ability. The following day when he was interviewed by the SIU, with the benefit of his notes, he was able to recall more details; this is why the SIU statement contains information that his notes do not.
[63] Detective Bedford testified that his notes are an aide memoire to assist him with refreshing his memory. It is impossible to record every detail of an event in one’s notes especially where the event is violent and dynamic like this one. He agreed that there was information that he gave to Detective Corsi 11 months later and evidence he testified to at trial that was not in his notes.
[64] The defence submitted that Constable Borovskis was the only officer who consistently checked his notes for accuracy before testifying and did not testify from an independent recollection. His testimony is therefore the most reliable. It was clear from the evidence that all of officers, except Constable Borovskis, relied to some extent on their independent recollection of this incident. Although it had occurred more than five years prior to trial it was something which stood out in their minds.
[65] None of the officers had been involved in a rolling block takedown where the suspect tried to escape or deliberately crashed into their vehicles. Some of them had never used their firearm before this incident. All of them recall that it was a very dynamic incident of short duration but one which created a surge of adrenaline. For those reasons it is easy to see why some independent recollection of the incident was still available. That does not mean that such recollection is unreliable. Indeed, in some ways it may be more reliable because it appears to have been etched in those officers’ memories somewhat indelibly. I accept the evidence of Detectives Martin and Bedford that they recorded all relevant facts as best as they could. If they testified to additional facts later based on their independent recollection I do not find this means that their evidence is wrong or of less value.
Detective Bedford’s Actions
[66] The defence submits that there was no need for Detective Bedford to kick Mr. DaSilva or Mr. DeSousa in the course of handcuffing them. His actions were gratuitous. The other officers’ notes do not indicate any need for Detective Bedford’s help nor do they indicate they saw Detective Bedford kick either suspect. I agree with the defence that it is somewhat odd that no other officer saw or recorded Detective Bedford kicking Mr. DeSousa or Mr. DaSilva in the course of arresting them. However, I do not find that this clear inconsistency is sufficient to reject Detective Bedford’s evidence.
[67] First, all of this occurs at the second scene at Weston Road and Ray Avenue. This was after the significant events that related to these charges had already occurred. Second, this was also a dynamic scene in which both Mr. DeSousa and Mr. DaSilva were yelling, officers were screaming commands, and there had been deliberate collisions between vehicles in order to immobilize the van. And finally, if I accept that Detective Bedford gratuitously kicked both suspects without the need for such significant action, what does that go to? It may mean that Detective Bedford overreacted or it may mean that the other officers were so consumed with trying to contain two suspects who continued to be resistant and violent that they did not have a clear recollection of exactly who was doing what to whom at the scene. None of these issues relate to the substantive issues I must decide in this case.
Possible Bias or Tainting
[68] I do not find that the officers’ were biased or concerned with the outcome of the case to the point that their evidence would be tainted. While it would be natural for the officers to be upset with what they perceived to be an attempt to kill them by Mr. DeSousa, I found that they gave their evidence in a measured and reasoned way and that they were generally unshaken in cross-examination.
[69] For all of the above reasons, I accept the officers’ evidence as both reliable and credible. Their evidence may therefore be relied upon with respect to drawing inferences related to the circumstantial evidence presented in this case.
THE OFFENCES CHARGED AND THE ANALYSIS
The Attempted Murder Counts
[70] Mr. DeSousa is charged with two counts of attempted murder with a motor vehicle while committing an aggravated assault. The counts relate to Detectives Abreu and Bedford.
[71] It is well-settled law that the Crown must be able prove that Mr.S. DeSousa had the specific intent to commit murder.
[72] In R. v. Ancio, [1984] 1 S.C.R. 225 the court held that the mens rea for attempted murder cannot be less than the specific intent to kill. Any lesser intent may lead to a conviction for a lesser offence such as aggravated assault, but the high threshold of a specific intent to kill and carry out that murder by any means, must be proven beyond a reasonable doubt by the Crown in order for the offence of attempted murder to be made out.
[73] The case law is clear that knowledge and intent may be inferred from circumstantial evidence. Further, it is permissible for this court to draw the conclusion that people are able to foresee the natural and probable consequences of their actions. As per R. v. Seymour, [1996] 2 S.C.R. 252, at para. 19, “if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.”
The Position of the Defence and the Crown
[74] The defence argues that there is a plausible inference that can be drawn from the facts in this case that does not point to guilt. Mr. DeSousa was simply attempting to escape from the rolling block and flee. That intention cannot be synonymous with the required intent to kill.
[75] The defence goes on to argue that the Crown is also unable to prove the required elements of aggravated assault, that is, that Mr. DeSousa intended to apply force and that it was objectively foreseeable that such force would cause bodily harm. There is no doubt that Detective Abreu broke his hand but there is no evidence as to when or how; his evidence was that he only discovered that his hand was broken at the second scene once Mr. DeSousa was out of the car. During the course of the takedown he was engaged and filled with adrenaline such that he cannot recall whether, for example, he broke his hand while smashing out Mr. DeSousa’s window with his gun or if his hand was hit by the van. According to the defence, therefore, one cannot reasonably infer that Mr. DeSousa intended to apply any force to the officers.
[76] The Crown argues that the officers were wearing their clearly visible police insignia and vests. They called out to Mr. DeSousa and identified themselves as police. They were yelling loudly in order to be heard over the revving engine and squealing tires of the van. Detective Martin could hear the officers yelling commands from inside his truck with the windows up. The Crown asks the court to infer that Mr. DeSousa could hear as well but chose to ignore the commands. He initially gestured a form of surrender by lifting his hands up and off the steering wheel. Then his entire demeanour changed and he became aggressively focused on escaping the block. Knowing he was under arrest and with officers in the path of his car, he chose to drive forward at a high rate of speed. It was clear that Mr. DeSousa made a conscious decision to escape arrest no matter what was in his way.
[77] The Crown further submits that the fact that Mr. DeSousa was unsuccessful in his attempt to murder Detectives Abreu and Bedford is not a consideration. This court can infer that Mr. DeSousa intended the consequences of his actions. He drove his van forward knowing that officers were in his way and that a consequence of his actions could include their death. That is the only logical inference to be drawn from Mr. De Sousa’s actions.
Analysis
[78] It is important for this court to focus on the evidence that could point to a logical inference that Mr. DeSousa intended to kill Detectives Abreu and Bedford. I find that there is an inference to be drawn from the circumstantial evidence but that inference is one that supports an intention to endanger the life of Detectives Abreu and Bedford.
[79] The offence of aggravated assault is a lesser included offence for attempted murder in cases where the main offence contains the essential elements of the offence to be included. In proving aggravated assault, the Crown need not prove that any harm was actually caused to the subject officers. R. v. Williams, 2004 NLCA 24.
[80] Aggravated assault is defined by the possibility of its tragic consequences and not the manner in which it is carried out. Therefore, even frightening someone by driving towards them would satisfy the actus reus of the offence if a reasonable person would have foreseen that such an action would expose the intended victim to the risk of serious injury. R. v. MacKay, 2004 NBCA 66.
[81] The mental element of aggravated assault may be established by proving intention, recklessness, or wilful blindness. The mental element does not require an intention to physically harm someone; what is required is the objective foresight of such harm. That is, the Crown need not prove any subjectively culpable mental state with respect to the consequences. In this case, the question to ask is whether a reasonable person would have foreseen the possibility of harm coming to either Detectives Abreu or Bedford based on the facts as found in this case. The inevitable answer is yes.
[82] I find that the facts of this case are insufficient to take Mr. DeSousa’s intention to the level of a specific intention to kill Detectives Abreu and Bedford. Rather, Mr. DeSousa in a reckless attempt to escape the rolling block takedown, did whatever was necessary, including aggressively driving at anything or anyone standing in his path. I do not find that the circumstantial evidence is sufficient to ascribe an intention to kill the officers to Mr. DeSousa. It does, however, satisfy the test of objective foresight of harm beyond any reasonable doubt.
[83] Turning to the actual evidence in support of the elements of the offence of aggravated assault by endangering the detectives’ lives (as opposed to a specific intent to kill), the following should be highlighted:
(a) There is no doubt that the scene was loud, chaotic, and at times smoke-filled. If the officers could not see one another at all times then an inference may be drawn that Mr. DeSousa could not see them at all times either.
(b) Mr. DeSousa’s finger was shot off during the block. He was no doubt in pain and even more anxious to flee the scene.
(c) While Detectives Bedford and Abreu were certain of Mr. DeSousa’s intention to run them over and kill them, their state of mind is certainly an important part of the narrative in this case but insufficient on its own to make out the offence.
(d) I agree with the defence and am left in some reasonable doubt as to whether the van took a route of escape or headed directly at the officers. However, I accept the evidence of Detectives Abreu and Bedford that Mr. DeSousa looked directly at them in the course of his attempt to leave the scene. While such an action may bring this case to the level of a case such as R. v. Phillips, [2009] O.J. No. 400, where the accused drove his car onto a sidewalk to get to the victim and then turned his car around and drove at him again, it does not bring it to the level of intent required for an attempted murder.
(e) This case is different from R. v. Marshall (1986), 71 N.S.R. (2d) 245, relied upon by the Crown, in which the accused made threats to “blow you away” and then went home to get his gun, returned to the bar, and started shooting. Mr. DeSousa never made any specific threat to anyone. Indeed, there is no evidence that he had had any previous interaction with these officers in his life. The officers’ evidence was consistent that the entire takedown incident lasted only 30 to 60 seconds. To infer a specific intention to kill any of the officers would not be logical in this set of circumstances. What is more logical is an inference that he generally intended to endanger the life of whoever was in his way in the course of his escape.
(f) In accordance with the tenets of the law on circumstantial evidence as per Seymour, it can be logically inferred that Mr. DeSousa foresaw the probable consequences of his actions. He wanted to escape the block at any cost. He was revving his engine, ignoring the officers’ commands, and possibly brandishing a knife at Detective Abreu. While he may have started to surrender by putting his hands in the air, for reasons unknown he changed his mind and began to aggressively maneuver his van to escape the block. It was clear from his actions that he was indifferent as to the consequences of escaping: he never slowed down, he never got out of his van, and he was apparently ambivalent even when being shot at. He just kept going. The predictable consequence of such ill-advised actions was that someone would likely get hurt or possibly killed. However, that is quite different from a specific intent to kill either Detective Abreu or Detective Bedford.
(g) Similar to the facts in Phillips, there was no evidence of injury to the victim. While Detective Abreu broke his hand, there is insufficient evidence pointing to how or exactly when. However, a specific injury is not required to prove the general intent offence of aggravated assault. Based on the circumstantial evidence in this case, it can be logically inferred that Mr. DeSousa’s actions—revving his engine to the point where the engine governor is engaged while being blocked in by four cars; failing to respond to police commands even after being shot at multiple times; and, crashing into all of the police vehicles while attempting to escape the block—are all indicative of an intention to escape at any cost, even the cost of endangering the lives of the officers. It is a reasonable inference that Mr. DeSousa foresaw the consequences of his aggressive and disturbing actions but carried on regardless. Such recklessness or wilful blindness is sufficient to prove the required intent for this offence.
[84] Based on all of the above I find that the Crown has not proven the two counts of attempted murder beyond a reasonable doubt. I do find, however, that the Crown has proven the lesser included offence of aggravated assault. Specifically I find that the Crown has proved that Mr. DeSousa’s actions endangered the lives of Detectives Abreu and Bedford and that Mr. DeSousa’s actions are consistent with an objective foresight of bodily harm.
[85] Section 662(1) of the Criminal Code provides authority for indicting an accused on a lesser included offence where only part of the offence charged is proved. The two considerations underlying the included offence analysis are: 1) whether the main offence contains the essential elements of the offence to be included, and 2) whether the description of the offence is sufficient to alert the accused to all of the included offences that may apply.
[86] This principle is stated in R. v. Simpson (1981), 20 C.R. (3d) 36, 58 C.C.C. (2d) 122 (ON CA), at para. 27: “The second operative principle governing the meaning of an “included offence” is that the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet.” This statement in R. v. Simpson was quoted with approval by the Court of Appeal for Ontario in R. v. Beyo, 47 O.R. (3d) 712, at para. 29.
[87] Where the attempted murder charge is particularized, i.e., where the means by which the murder was attempted are particularized in the charge, aggravated assault is an included offence of attempted murder: R. v. Norton, 110 Sask. R. 151, overturned in part on other grounds, , 125 Sask. R. 75 - “by stabbing”; R. v. Adams and Waltz (1989), 49 C.C.C. (3d) 100, 33 O.A.C. 148 (Ont. C.A.) - “by wounding him”; and, R. v. Allard, 36 Q.A.C. 138 – “by stabbing”.
[88] This sentiment was echoed more recently by the Ontario Superior Court of Justice in R. v. S.R., [2008] O.J. No. 2805, at para. 96. In that case, the accused was convicted of aggravated assault as a lesser and included offence to attempted murder. In the judgment, Beaulieu J. remarked: “The indictment is sufficiently specific with respect to the mode of R.'s alleged attempted murder of M. (“attempting to push her in front of a subway train”), that aggravated assault can be considered as a lesser included offence on this basis.” In other words, the specificity with which the offence of attempted murder was laid out in the indictment was the basis upon which Beaulieu J. felt that aggravated assault could be included as a lesser offence.
[89] Mr. DeSousa is also charged with aggravated assault of a peace officer pursuant to s. 270.02 of the Criminal Code. The elements of this offence mirror those of aggravated assault save and except that the accused must know that the person whose life he or she is endangering is a police officer.
[90] Therefore, Mr. DeSousa shall be found guilty of aggravated assault, a lesser included offence to attempted murder, in relation to Detectives Abreu and Bedford with respect to counts one and two on the indictment. Count four on the indictment, the charge of aggravated assault of a peace officer pursuant to s. 270.02, is stayed based on the principles in R. v. Kienapple, [1975] 1 S.C.R. 729.
THE REMAINING COUNT – s.249.1
[91] Mr. DeSousa is charged with evading police during the course of a pursuit pursuant to s. 249.1 of the Criminal Code.
[92] There is no doubt that Mr. De Sousa was “evading” his pursuers. The issue is whether or not he knew they were the police.
[93] During the surveillance conducted prior to the rolling block takedown that evening, it was unclear whether Mr. DeSousa knew he was being pursued by police. While Detective Martin described Mr. DeSousa as driving around aimlessly, there were observations made by the police which give this court pause in terms of Mr. DeSousa’s behaviour during the surveillance.
[94] First, once Mr. DeSousa exited from the 401 onto Black Creek Drive and then Weston Road, there was virtually no traffic. With five police vehicles participating in surveillance on what was an otherwise deserted December night there is a possibility that Mr. DeSousa noticed that one or more of the police vehicles kept appearing. Further, his driving behaviour seemed objectively odd: pulling into gas stations for short periods, turning onto dead end streets, and seemingly driving without any apparent purpose.
[95] However, in a circumstantial case such as this, the focus must be on whether there is any other logical conclusion to be drawn from Mr. DeSousa’s actions. First, the cars doing the surveillance were unmarked. At no time during the surveillance did they engage their emergency lights. Second, the officers were clear in their evidence that they concealed any visible police insignia to maintain their cover. Therefore, while Mr. DeSousa may have been driving in a manner that was objectively somewhat unusual, it could also be the case he was simply driving around aimlessly, as Detective Martin pointed out. Driving in that manner is not a crime particularly where Mr. DeSousa was obeying the speed limit and traffic signals.
[96] The next step in the analysis must focus on the actual rolling block takedown. It is at this point that Mr. DeSousa’s actions change. He is no longer driving around aimlessly. He is deliberately, aggressively, and dangerously attempting to escape the block. How is it that he knew that he was surrounded by police if their cars were unmarked and there were no emergency lights to warn him? I find that he did know he was surrounded by police and attempted to evade them. There is no other logical conclusion that can be reached based on the evidence of the officers which I accept in this regard. Specifically, I note:
(a) Each officer testified that he had police insignia, use of force items, and police vests with him. They all put on their police vests before the takedown. All of the police vests had the word “POLICE” emblazoned in large white letters on front and back. Detective Abreu was right up against the van and was indeed leaning into it once he smashed in the window. I reject the defence’s argument that his insignia may have been covered because of his position and the manner in which he was holding his gun. The insignia is meant to be seen and I infer that it was seen by Mr. DeSousa.
(b) If I am wrong and Mr. DeSousa did not see the insignia or the markings on the police vests, there was no reason that he could not hear Detective Abreu, Detective Bedford, and Constable Borovskis yelling commands after the driver window had been smashed in. Detective Martin heard the commands through the closed windows of his truck even with the noise and chaos. I infer that Mr. DeSousa heard the commands as well and chose to ignore them.
(c) Mr. DeSousa looked right at Detective Bedford and made eye contact with him. Detective Bedford was wearing his police vest with his badge clipped to the front of it. If Detective Bedford was able to make eye contact with Mr. DeSousa, it is a logical inference that Mr. DeSousa could see him and, in particular, the vest with the large lettering across the front identifying him as police. Detective Bedford was close enough to Mr. DeSousa to see him raise his arms in the air and change his attitude and expression. It defies logic to suggest that Mr. DeSousa did not know that he was blocked in by police. If, however, that inference is incorrectly drawn, I find that Mr. DeSousa must have recognized Detective Bedford as police the second time he drove towards him as he accelerated to escape from the block.
(d) Looking at the evidence as a whole, it is clear that no other inference can be logically drawn but that Mr. DeSousa knew he was involved in a police takedown. He was blocked in by four vehicles; he was commanded multiple times by individuals who identified themselves as police to shut off and exit his vehicle because he was under arrest; and, he was confronted and surrounded by officers who all testified they were wearing their police issued bullet-proof vests which clearly identified them as police. Even if Mr. DeSousa did not see one of them or missed one or two of the commands, I find that he cannot have missed either intentionally or unintentionally that the men confronting him were police and that he was involved in a takedown as opposed to some form of mugging or gang related activity.
[97] The offence of evading police during the court of pursuit requires that Mr. DeSousa be operating a vehicle in the course of a police pursuit and that he fails to stop his vehicle as soon as is reasonable in the circumstances without any reasonable excuse. The mental element requires an intention to evade police.
[98] Having found that Mr. DeSousa knew that he was surrounded by police, the external circumstances of the rolling block takedown do not, strictly speaking, match up with those of the offence. However, after escaping the rolling block takedown, there was a pursuit down Weston Road for approximately one-and-a-half kilometres. Mr. DeSousa knew he was being pursued by police but continued to drive on even with a damaged vehicle. He was stopped only when officers intentionally made contact with the van and blocked him in again. Even at this point, Mr. DeSousa continued to rev his engine and squeal his tires in an attempt to escape.
[99] Therefore, being aware that he was being pursued by police while operating a motor vehicle, I find that Mr. DeSousa intended to evade the police. He did not stop voluntarily nor is there any form of reasonable excuse that would mitigate or explain his behaviour.
[100] I find that the elements of this offence are clearly made out and there shall be a finding of guilt on count three on the indictment.
Madam Justice C.A. Gilmore
Read in Open Court: April 28, 2016
NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.
