CITATION: R. v. Johnson, 2016 ONSC 7615
COURT FILE NO.: CR-16-40000422-0000
DATE: 20161208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JERMAINE JOHNSON
Accused
Michael MacDonald, for the Crown
Douglas Usher, for the Accused
HEARD: October 3 - 14, 2016
B.A. ALLEN J.
REASONS FOR DECISION
BACKGROUND
The Charges
[1] Jermaine Johnson was charged on April 24, 2014 with two firearms offences, possession of a loaded prohibited and restricted firearm while not holding a licence or a registration certificate for it and possession of such a firearm knowing he was not a holder of a licence or registration certificate for it (counts 1 and 2). He was also charged with one drug-related offence, possession of marijuana for the purpose of trafficking (count 3). He was further charged with three motor vehicle-related offences, dangerous driving (count 4), operating a motor vehicle in order to evade the police (count 5) and mischief to property, the bumper of a police cruiser (count 6).
THE EVIDENCE
Overview of the Investigation
[2] The officers from the Major Crimes Unit of 31 Division (“the MCU”) were assisted by the Toronto Police Service’s Integrated Guns & Gangs Task Force in the investigation, search and arrests in this case. The Crown called as witnesses 12 police officers who were involved in various aspects of the investigation and search.
[3] The officers were involved from June 21st to June 23rd, 2014 in surveillance of two persons of interests and two vehicles. They were involved in the early hours of June 24th in the pursuit of one of the vehicles which was driven by Mr. Johnson. Officers were involved also in the early morning hours of June 24th in the execution of a search warrant and the search of the premises at 710 Humberwood Blvd., apartment 1714.
[4] The Crown sought to call as an expert witness, Officer David Forbes, a member of the drug squad not involved in this case. Following a voir dire into the admissibility of his evidence, I allowed Officer Forbes to testify as an expert in the areas of sales, methods, packaging, consumption and pricing of illicit marijuana.
[5] The defence called Jermaine Johnson, Jason Burke and Tinnelle McCormack, Mr. Burke’s sister, as witnesses.
Surveillance
[6] Det. Johnston and D.C. Small, both with the guns and gang task force received information about two persons of interests, Mr. Johnson and Jason Burke. They received person of interest packages containing photos of the Mr. Burke and Mr. Johnson. They also received information that officers from the MCU were watching the two vehicles. One vehicle was a green Mazda registered to Tianna Fletcher and the other a Chrysler Pacifica registered to Mr. Johnson.
[7] At around 12:18 a.m. on June 22nd D.C. Caccia and Det. Little, both of the MCU, conducted surveillance at Driftwood Crt. They testified they saw Mr. Johnson’s Chrysler Pacifica and the Madza at Driftwood Crt. drive southbound to Tobermory Rd. and park side by side. Around midnight on June 23rd surveillance officers observed the Mazda at Jane St. W. and Exbury Rd. This is consistent with Mr. Johnson and Mr. Burke’s testimony.
[8] Mr. Johnson and Mr. Burke testified that late June 21st and early June 22nd they went to a barbeque on Driftwood Crt. Mr. Johnson testified he was driving his Chrysler Pacifica and Ms. Fletcher was driving the Mazda. When they left the barbeque they went with other friends to hang out at Mr. Burke’s apartment.
[9] At around 12:30 a.m. on June 22nd, Det. Johnston, D.C. Small, D.C. Mantle and D.C. Dean began watching the Chrysler Pacifica and Mazda at a Petro-Canada gas station at Keele St. and Finch Ave. W. All officers were in unmarked police cars. Several of the police cars pursued the target vehicles after they left the gas station. D.C. Small observed Mr. Johnson at one gas bay pumping gas into the Chrysler Pacifica and observed the Mazda at another bay. He saw a black female, later identified as Tianna Fletcher, enter the driver’s seat of the Mazda.
[10] When shown the video surveillance, Mr. Johnson agreed he was at the Petro-Canada station at that time. The Mazda and Chrysler Pacifica then left the Petro station and entered Rexdale Blvd. followed by several unmarked police, eventually arriving at 710 Humberwood Blvd.
[11] On June 22nd, after leaving the Petro-Canada station, D.C. Mantle checked the underground garage at 710 Humberwood Blvd. He observed Mr. Johnson’s Chrysler Pacifica parked in spot #69 in the garage. On June 23rd D.C. Randhawa was also tasked to check the underground garage at 710 Humberwood Blvd. At about 5:40 p.m. on that day he found the Chrysler Pacifica in the same parking spot #69.
[12] During the evening of June 23rd and in the early morning hours of June 24th officers conducted further surveillance.
[13] D.C. Coroghly of guns and gangs testified that on June 23rd he saw the Mazda parked in front of the Hasty Market at the northwest corner of Rexdale Blvd. and Humberwood Blvd. At 8:45 p.m., he observed Mr. Johnson enter the Mazda on the front passenger’s side.
[14] On June 23rd at about 9:25 p.m., D.C. Ceresoli saw a woman, later identified as Tianna Fletcher, leave 710 Humberwood Blvd., get into the Mazda and then return and enter the premises at about 10:24 p.m. On June 23rd, at about 9:50 p.m., Det. Little of the MCU, observed the Mazda enter a visitors’ parking lot close to 710 Humberwood Blvd. Mr. Johnson got out of the passenger’s seat and a black woman got out of the driver’s seat. They walked together toward 710 Humberwood Blvd.
[15] D.C. Ceresoli then saw a male approach the Mazda who he identified from one of the person of interest photos as Mr. Johnson. Mr. Johnson got into the Mazda and drove away followed by other officers. At 11:05 p.m. D.C. Ceresoli observed the same male and another female, later identified as Tinnelle McCormack, enter the lobby of the apartment building.
[16] Mr. Johnson testified that he and Mr. Burke grew up in the same neighbourhood and had been friends since their childhood. He admitted he often visited Mr. Burke’s apartment and at times stayed overnight and parked his Chrysler Pacifica there.
Evade Police Officers
The Crown’s Evidence
[17] Det. Johnston was driving an unmarked Subaru. Early on June 24th, Det. Johnston and D.C. Mantle observed the Mazda leave 710 Humberwood Blvd. and head westbound on Bloor St. W. followed by several unmarked police vehicles. At about 12:20 a.m. on June 24th, surveillance was set up at Bloor St. W. and St. Clarens Ave. Det. Johnston was set up at 1:36 a.m. to watch the House of Lancaster, an adult entertainment establishment in that area.
[18] Det. Johnston observed Mr. Johnson, Mr. Burke and two females leave the House of Lancaster and walk westward on Bloor St. W. to where the Mazda was parked. Det. Johnston saw Mr. Johnson enter the driver’s seat and Mr. Burke enter the front passenger’s seat. The two females entered the rear seats.
[19] Mr. Johnson, Mr. Burke and Ms. McCormack confirmed that they and Tianna Fletcher went to the House of Lancaster in the early morning hours of June 22nd and that Mr. Johnson was driving the Mazda. Their evidence is that they went there to celebrate Mr. Johnson’s birthday. When they arrived they realized they were at the wrong venue. When they left the House of Lancaster, they were on their way to the correct location with Mr. Johnson driving, Mr. Burke in the front passenger’s seat, Ms. McCormack in the rear driver’s side seat and Ms. Fletcher in the rear passenger’s side seat. Their route was along Bloor St. W. travelling westbound.
[20] Det. Johnston, D.C. Small and D.C. Mantle, of the MCU, and other officers, observed the Mazda east of Runnymede Ave. travelling westbound on Bloor St. W. Det. Johnston drove his vehicle in front of the Mazda which westbound on Bloor St. W. in order to make observations and prepare for a “high stakes takedown”, which refers to an urgent stop and arrest. Det. Johnston testified that when he got to the intersection of Bloor St. W. and Runnymede Rd. his vehicle, the Mazda and other unmarked police vehicles, were the only westbound vehicles there.
[21] Det. Johnston testified his was the lead vehicle in the centre lane when the traffic light turned red. He stated that when the Mazda stopped, he called for the takedown and for the Mazda to be boxed in. He testified that his Subaru boxed the Mazda in from the front, another police vehicle boxed it in from the rear, and two other police vehicles each boxed the Mazda in from the driver’s and passenger’s sides.
[22] Det. Johnston said he looked through his rear-view mirror. He said he stayed in his vehicle. He testified he heard officers yell “Police!”
[23] Det. Johnston stated that on the red light the Mazda, situated to his rear, pulled to the left and fought its way past his vehicle, striking his rear driver’s side bumper. Det. Johnston gave a cursory description of the damage to his vehicle. He said the plastic covering on the back bumper was pushed in. D.C. Mantle testified he also saw the damage to Mr. Johnson’s vehicle, a dent in the plastic covering of the rear left bumper.
[24] According to the testimony of several officers, after the Mazda made contact with the Subaru, the Mazda pushed by and continued on into the left turn. Unexplained, there are no photos of the damage to the Subaru. However, there were photos taken of damage to the Mazda. One photo shows damage to the Mazda to the right front quarter panel and slight damage to the glass of the right turn signal light and a scuff to the right front bumper of the Mazda where Det. Johnston alleges the bumper contacted his vehicle.
[25] D.C. Mantle’s vehicle was to the right of the Mazda at the intersection. He testified he announced and repeated loudly, “Toronto Police!” He said he heard other officers yell, “Police!” D.C. Dean testified he also heard other officers yell “Police, hands up!”
[26] D.C. Mantle testified he got out of his vehicle between his vehicle and the Mazda, to the right of the Mazda. He stated he approached the front passenger window of the Mazda and saw Mr. Burke in the front passenger seat looking straight ahead. He said he tried to open the front passenger door to take Mr. Burke out. He saw Mr. Johnson turn the steering wheel to the left. D.C. Mantle testified he then observed the Mazda move out of the box and move to the left. He said that his own vehicle and the vehicle at the left of the Mazda were not situated tightly enough and the Mazda was able to escape through the space.
[27] D.C. Small also drove to Runnymede Rd. and Bloor St. W. He received the radio call from Det. Johnston to take down the Mazda and box it in. At the intersection, he was in the vehicle that was to the Mazda’s rear with its front bumper at the Mazda’s rear bumper. D.C. Small got out of his vehicle dressed in plain street clothes, he said shorts and a t-shirt, and advanced toward the Mazda. He pulled out his firearm, pointed it at the Mazda and yelled out, “Police, don’t move!”
[28] D.C. Ceresoli conceded there was nothing in the plain clothes or unmarked cars that would alert people that the persons and other cars on the scene were police officers and police cars. D.C. Mantle testified he was wearing his police badge on a chain around his neck. He described the badge as being about 2 1⁄2″ wide and 2 1⁄2″ high.
[29] D.C. Small stated that as he was getting out of his vehicle he saw the male driver, Mr. Johnson, look over his left shoulder. He observed the female in the rear passenger’s side seat of the Mazda, Ms. Fletcher, roll down the window, open and then close the rear driver’s side door. D.C. Small also said he observed the Mazda make an immediate and quick left turn making contact with Det. Johnston’s vehicle which was in front of the Mazda. Contrary to Det. Johnston’s evidence, D.C. Small stated that Det. Johnston got out of his vehicle and stood on its right side before he re-entered the vehicle and drove down Runnymede Rd.
[30] D.C. Ceresoli testified he drove one of the vehicles that pursued the Mazda. He indicated that at Runnymede Rd. and Bloor St. W. none of the police vehicles had sirens on or their lights flashing. D.C. Dean confirmed there were no police lights flashing or sirens at the intersection. He testified his vehicle was five cars back from the vehicle leading the chase down Runnymede Rd.
[31] After the Mazda went through the red light and turned left onto Runnymede Rd., Det. Johnston immediately turned left through the red light and chased the Mazda down Runnymede Rd. at about 80 km/hr. in a 40 km/hr. zone for about one kilometer. Det. Johnston testified that at this point he had his red lights flashing.
[32] Det. Johnston stated that the Mazda went into the curb lane and his vehicle was in the passing lane with his passenger side beside the Mazda. Det. Johnston testified that on Runnymede Rd. he blocked the Mazda on the front driver’s side to prevent it from moving and proceeding any further. Other officers then arrived.
[33] D.C. Small testified that after the Mazda made the left turn he jumped back into his car and followed the Mazda. He testified that when he arrived he saw the Mazda parked against the curb. D.C. Small said, to prevent the Mazda from leaving, he drove the right front of his car into contact with the left front of the Mazda. He said that, as a result, the Mazda sustained scuffing on its left wheel well. He said he saw Det. Johnston at the scene but could not say where his vehicle was situated.
[34] D.C. Small’s evidence that he did not see Det. Johnston’s Subaru is perplexing. This is because Det. Johnston’s evidence was that he arrived first and that when other officers including D.C. Small arrived his Subaru was stopped blocking the Mazda in the same spot that D.C. Small described he had stopped his vehicle.
[35] A photo shows damage to the left front quarter panel of the Mazda above its left wheel well where D.C. Small says his vehicle contacted it. I assume there would be some damage to D.C. Small’s vehicle since his car scuffed the Mazda. Again, unexplained, there are no photos of the damage to D.C. Small’s vehicle to substantiate the police’s version of what happened on Runnymede Rd., which as I will discuss below, differs from that of the defence.
[36] D.C. Small went to the driver’s side of the Mazda, pulled Mr. Johnson out and arrested him for unauthorized possession of a firearm. D.C. Small conducted a search of Mr. Johnson incident to the arrest. In his front jeans pocket he found a key chain which held several keys and a brown wallet in his rear pocket. He found no drugs, guns or any other incriminating evidence in his search of Mr. Johnson or the Mazda. D.C. Small placed the key chain and wallet on the hood of his car. He saw Det. Johnston take the keys. D.C. Dean arrested Mr. Burke on Runnymede Rd. Other officers arrested Ms. McCormack and Ms. Fletcher. Charges against the two women were dropped and Mr. Burke’s case was eventually resolved.
The Defence’s Evidence
[37] Mr. Johnson’s, Mr. Burke’s and Ms. McCormack’s perception of what occurred in the early morning hours of June 24th at the intersection of Bloor St. W. and Runnymede Rd. in some ways differs from the evidence of the police. The occupants of the Mazda were on their way from the House of Lancaster to another location to continue celebrating Mr. Johnson’s birthday.
[38] Ms. McCormack stated she was sitting on the rear driver’s side. She testified that the Mazda stopped at a red light at the intersection of Bloor St. W. and Runnymede Rd. She stated that she glimpsed out of the corner of her right eye and saw a man holding a gun. Ms. McCormack said she became fearful because of what had happened to her brother Jason Burke a few years earlier. This is consistent with D.C. Small’s evidence that he approached the right rear window with his gun pointed at the Mazda.
[39] In contrast to D.C. Small’s evidence, Ms. McCormack and Mr. Johnson denied that Ms. Fletcher, who was sitting in the rear passenger seat, opened the right rear window and then the door and closed it just before the left turn.
[40] I will digress somewhat here to explain what Ms. McCormack was referring to.
[41] Mr. Burke is blind as a result of gang activity. He was involved in what I understand was gang warfare where he was shot in the head causing him to become fully blind. Mr. Burke has quite a lengthy criminal record. He has possession of cocaine and marijuana and trafficking convictions, possession of prohibited firearms convictions − offences dating from 2000 to 2014. The current firearm and drug charges were resolved before Mr. Johnson’s trial. Mr. Burke was out on bail on other charges when he was arrested on June 24, 2014.
[42] Ms. McCormack testified she yelled “gun” or “they have guns” when she saw the man approach with the gun. Mr. Johnson and Mr. Burke testified that they heard Ms. McCormack’s warning. Mr. Johnson testified he looked back at Ms. McCormack who was sitting on the back driver’s side and looked back to his right and saw a man with a gun at the right rear passenger window. D.C. Small’s evidence is consistent with Mr. Johnson’s that he saw Mr. Johnson look over his left shoulder.
[43] Ms. McCormack, Mr. Johnson and Mr. Burke testified they thought gang members might be attempting to finish off the job, I assume, of killing Mr. Burke. Mr. Johnson testified he also thought someone from the House of Lancaster might be trying to rob them.
[44] These witnesses testified they ducked down as Mr. Johnson made the quick left turn through the red light onto Runnymede Rd. They testified they feared someone would shoot into the car. None of these witnesses felt the Mazda collide with another car or bump into anything. This is inconsistent with the police evidence.
[45] None of the defence witnesses heard anyone yell “police”. This is inconsistent with the police evidence that a number of officers yelled “police” loudly. Mr. Johnson said he likely had the music in the car on loud because he was likely trying “to keep the vibe going”.
[46] Mr. Johnson testified he immediately ducked down and tucked his head into his legs and spun the steering wheel left. He stated that he kept his head low and stepped on the gas and proceeded southward down Runnymede Rd. He heard no one shout “police!” All three witnesses denied seeing any police lights or hearing any sirens at the intersection. This is consistent with the police evidence.
[47] Contrary to the police evidence, Mr. Johnson and Ms. McCormack testified they did not see any other cars at the intersection. Mr. Johnson said he saw cars following him down Runnymede Rd. Both Mr. Johnson and Ms. McCormack testified everything happened so fast they did not notice any vehicles at the intersection trying to block them in. Their evidence about the instantaneous speed with which the incident occurred is consistent with that of the police.
[48] Mr. Johnson and Ms. McCormack testified they saw no indicators that the man with the gun, or anyone else at the intersection, was a police officer. This is consistent with the police evidence that there was nothing about the police officers’ dress or the unmarked cars that would alert anyone of police.
[49] D.C. Mantle’s evidence was that when he approached the right driver’s window where Mr. Burke was sitting, he was wearing his 2 1⁄2″ wide and 2 1⁄2″ high police badge on a chain around his neck. Of course, Mr. Burke is blind and could not have seen him or the badge.
[50] Mr. Johnson said while driving down Runnymede Rd., he raised his head and looked into his rear-view mirror and saw red flashing police lights. This is consistent with the evidence of Det. Johnston and D.C. Dean who said they did not employ their lights until they were on Runnymede Rd. Mr. Johnson testified he was relieved. He said when he realized it was the police he pulled over to the right and stopped and told the other occupants to put their hands out of the car windows.
[51] Unlike the police evidence, Mr. Johnson stated that he stopped the car voluntarily. He was not forced by the police to stop by them blocking his vehicle. He said he was so relieved that he was glad to stop. Unlike the police evidence, Mr. Johnson testified that the Mazda was not struck by any other vehicle attempting to block him. Mr. Burke and Ms. McCormack stated a police vehicle struck the Mazda when it was stopped on Runnymede Rd. Like the police, Mr. Johnson said the stop at the intersection and left turn to the drive and stop on Runnymede Rd. took mere seconds.
[52] Both Mr. Johnson and Ms. McCormack have serious criminal records. Like with Mr. Burke this could have an impact on their credibility.
[53] Mr. Johnson has several weapons and drugs convictions as well as several assault, theft, and robbery convictions during a period of over a decade. Ms. McCormack has convictions for thefts, uttering threats, assault with a weapon, assault causing bodily harm and a conviction for possession of ammunition.
Conclusion on Evade Police Officers
[54] Mr. Johnson is charged under s. 249.1(1) of the Criminal Code with failing without reasonable excuse, in order to evade the police, to stop his vehicle as soon as reasonably possible when he left the scene at the intersection of Bloor St. W. and Runnymede Rd. and sped down Runnymede Rd. The provision states:
249.1(1) Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.
[55] The essential elements of this offence which the Crown must prove beyond a reasonable doubt are:
(a) the accused operated a motor vehicle;
(b) the police pursued the vehicle;
(c) the accused knew a peace officer was pursing them;
(d) the accused failed to stop as soon as reasonably possible in the circumstances;
(e) the absence of a reasonable excuse for failing to stop; and
(f) the accused failed to stop in order to evade the police.
[56] There is no question Mr. Johnson was operating a motor vehicle and that the police were pursuing him down Runnymede Rd. in their vehicles. The main issues are: whether Mr. Johnson knew police were pursuing him; whether he had a reasonable excuse for failing to stop; whether he failed to stop as soon as reasonably possible; and whether he failed to stop in order to evade the police.
[57] My determination revolves around whether on all the evidence I find reasonable and credible the police’s version of what occurred at the intersection and on the drive down Runnymede Rd.; whether the evidence as a whole raises a reasonable doubt about whether Mr. Johnson evaded the police.
[58] Critical to my findings is the agreement by both sides that the entire episode lasted only seconds. It was a fast-moving dynamic situation. Also important is the view common to both sides that there is nothing in the police officers’ clothing or their vehicles that would alert anyone there was police presence. As well, all agree there were no sirens or flashing police lights at the intersection. Flashing lights were only employed on Runnymede Rd.
[59] I find for reasons set out below that the evidence raises a reasonable doubt in my mind about whether the Crown has proven the essential elements of the offence.
[60] I find that it is reasonably possible that Mr. Johnson and Ms. McCormack, who saw a man approach the car at the intersection, did not know that D.C. Small, who pointed a gun at the right rear window, was a police officer. D.C. Small said he was likely wearing shorts and a t-shirt that evening. All officers were in street clothes.
[61] D.C. Mantle testified he approached the right front passenger window of the Mazda wearing a small police badge on a chain around his neck and otherwise nothing else identifying him as an officer. Mr. Burke, who D.C. Mantle saw sitting at the window, is blind and could not have seen D.C. Mantle let alone his badge. Given the size of the badge it could go unnoticed or unseen even by a sighted person in the dark and in the heat of a fast-paced situation.
[62] The police vehicles were unmarked. There were no flashing lights or sirens from the police vehicles. Mr. Johnson and Ms. McCormack testified they did not see any other vehicles at the intersection. That may seem implausible given the police evidence that there were several unmarked police vehicles on the scene at the intersection. However, if I accept as possible the panicked states of mind of the three defence witnesses, which I will discuss below, and the mere seconds’ speed at which things transpired, it is not beyond reason that in Mr. Johnson’s haste to escape, he and Ms. McCormack did not notice or recall any other vehicles at the intersection.
[63] The same might be said of the fact that none of Mr. Johnson, Mr. Burke or Ms. McCormack heard anyone yell “police” when the police evidence is that more than one officer yelled that warning loudly. Again, if I accept as a possibility the panicked states of the defence witnesses, and consider the speed at which everything transpired, it is possible to accept that they might have been distracted by fear and did not hear the warning.
[64] There are additional factors to consider. Mr. Johnson testified the driver’s window was closed and he likely was playing music in the car, as was his habit, “to keep the vibe going”. This makes sense since he and his friends were on their way to continue the birthday celebration. As well, D.C. Small testified the rear driver’s side window was closed when he approached the car. His evidence was that he saw Ms. Fletcher open it and open and close the door. Ms. McCormack and Mr. Johnson denied Ms. Fletcher did this. D.C. Mantle approached the passenger's side front window. There is no evidence whether that window was open or not.
[65] This brings me to the boxing in at the intersection, the blocking of the Mazda on Runnymede, the damage to Det. Johnston’s Subaru and the prospect of damage to D.C. Small’s vehicle. An actual boxing in at the intersection could have alerted Mr. Johnson and the others that the vehicles boxing the Mazda in might be police vehicles. Also in relation to the intersection, there is the further fact, according to the police’s evidence, that the police vehicles that were supposedly to block the front and rear of the Mazda left sufficient space for the Mazda to get through. I find that could not have been much of a boxing-in if a space to the left large enough for a vehicle to pass through remained open, in which case it could have gone unnoticed by the defence witnesses.
[66] The trip along Runnymede Rd. lasted mere seconds. Mr. Johnson testified that it was the flashing lights on the vehicles behind him that alerted him that police were pursuing him. I accept Mr. Johnson’s evidence. This is the first he saw of flashing police lights. He did not proceed far before he stopped. I accept as reasonable that he stopped his vehicle as soon as he realized the police were pursuing him. I accept in all the circumstances that he was not attempting to evade the police.
[67] There is a further weakness in the Crown’s evidence. Det. Johnston and D.C. Small both say they used their vehicles to block the Mazda from moving. Det. Johnston, being the first car behind the Mazda, was at the location on the Mazda’s driver’s side when D.C. Small and other police cars arrived. According to both officers’ evidence, both cars would have made contact with the Mazda on its left side, both of them saying in order to block the Mazda from moving.
[68] A problem lies in D.C. Small’s evidence that he did not see Det. Johnston’s vehicle at the location where Mr. Johnson’s vehicle was stopped. D.C. Small even drew a diagram of where his vehicle was situated in relation to the Mazda and other vehicles and did not mark the location of Det. Johnston’s vehicle. As well, D.C. Small said his vehicle contacted the Mazda scuffing it at the left wheel well which would reasonably have left some damage on D.C. Small’s car. Mr. Johnson and Ms. McCormack also testified a police car hit the Mazda. Yet there are no photos of damage to D.C. Small’s vehicle.
[69] This brings me to wonder how it could be that D.C. Small did not see Det. Johnston’s Subaru when they stopped virtually in the same spot and Det. Johnston’s vehicle was there first. This gives me cause to wonder whether the police blocked Mr. Johnson to stop him from getting away or struck the Mazda after it had voluntarily stopped. The inconsistencies in the police evidence make me more susceptible to accepting Mr. Johnson’s evidence, although he denies his vehicle was struck on Runnymede Rd. that he was relieved and pulled over and stopped voluntarily and was not trying to get away from the police.
[70] The allegation of mischief to property, which I will discuss more fully below, is related to damage to the Subaru. This is why I find it troublesome that the police only took photos of the Mazda and did not take photos of any damage to the Subaru. The absence of this photographic evidence remains unexplained. The testimony of Det. Johnston and D.C. Mantle about the damage to the Subaru was sketchy at best.
[71] Photographic evidence of the damage to the two police cars might have provided support for the boxing in and blocking of the Mazda to prevent its escape.
[72] I am left with a doubt about damage to the Subaru and about whether an actual boxing in occurred. I am also left with a doubt about the blocking of the Mazda on Runnymede Rd. The Mazda is not a new car. The photos show a large rusted area and general wear and tear. There is no forensic or other evidence that establishes that the damage to the Mazda was newly caused at the intersection or on Runnymede on June 24th or was pre-existing damage.
[73] In all these circumstances, I find reasonable the defence witnesses’ evidence that they did not feel the Mazda hit another vehicle at the intersection and I have doubt about accepting the police evidence that a police vehicle struck the Mazda on Runnymede Rd. to stop it.
[74] Then there is the further evidence by the defence witnesses that they did not know the man with the gun was a police officer. They thought he might be a gang member trying to settle a score with Mr. Burke. This engages a serious credibility question. The criminal records of the defence witnesses are a pertinent consideration in deciding this question.
[75] However, I find this is the type of case where a criminal record can cut both ways in assessing credibility. Mr. Johnson, Mr. Burke and Ms. McCormack are not angels. They have not lived lives of virtue. They have serious and lengthy criminal records. This shows their disrespect for the law. Convictions for theft and robberies and their other crimes raise the spectre of dishonesty.
[76] There is another credibility concern. Mr. Johnson and Mr. Burke are old friends and Ms. McCormack is also a friend to Mr. Johnson and a sister to Mr. Burke. Both of Mr. Johnson’s witnesses are closely tied to him. This could motivate them to fabricate. But I find their friendship with Mr. Johnson can also cut both ways.
[77] The witnesses’ criminal pasts, especially their previous experiences with firearms, can be seen as providing context for the fear they say they felt when they saw the man in street clothes approach the car in the dark pointing a firearm at their car. Mr. Burke lost his sight in a gang gun battle. It is not beyond reason that the close relationship of the others with Mr. Burke, together with their experiences in the criminal world, could cause fearful reactions.
[78] I did take into account the fact that the incident which led to Mr. Burke’s blindness happened eight years before the incident before the court. On one hand, it could be said that any fear about a threat to Mr. Burke’s life should have subsided over those eight years. On the other hand, it is also reasonable to imagine that the traumatic effect of being shot in the head in a gun battle and being blinded as a result is not something that would easily subside for Mr. Burke or anyone close to him, even with the passage of eight years. The reality is that Mr. Burke’s face is markedly disfigured and scarred around his eyes and nose, not easy to put out of mind.
[79] I find in this case that the criminal records and close relationships among the three witnesses rather than adversely impacting their credibility are factors that tend to confirm their credibility. I find that evidence in the context of the darkness of the hour, the very fast-paced situation, and a man indistinguishable as a police officer pointing a gun, reasonably support the conclusion that Mr. Johnson, Mr. Burke and Ms. McCormack were afraid and that their fear was well-founded.
[80] I accept Mr. Johnson’s evidence, supported by the other witnesses and the surrounding circumstances that it is within reason that he did not know the police were pursuing him at the intersection or down Runnymede Rd. until he saw the flashing lights. I accept as reasonably possible in the circumstances for reasons set out earlier that none of the Mazda’s occupants heard the police warning. It makes sense, considering all the facts, that Mr. Johnson made the fast left turn on a red light and sped away thinking he and his friends’ lives were in danger and not because he was trying to get away from the police. I find he stopped on his own when he realized the police were chasing him.
[81] There is other circumstantial evidence I took into account.
[82] A dozen police officers spent many hours over three days watching Mr. Johnson, Mr. Burke and the two women before setting about to arrest them and search the apartment. The police saw nothing criminally compromising. They saw ordinary daily activities – trips to the convenience store and gas station, attending a barbeque and a night club, and comings and goings to and from Mr. Burke’s apartment.
[83] The police seized nothing of evidentiary value when they searched the Mazda and its occupants. They found $630 on Mr. Johnson but this did not lead them to charge him with possession of proceeds of crime. He said the money was for his birthday celebration that night. The point I make here is that one might be inclined, with other facts in support, to arrive at a different conclusion if the Mazda or any of its occupants were found with contraband or if they had engaged in criminal activity before their arrest. That might give them a reason to try to evade the police. But this is not so in this case. Further, a search of Mr. Johnson’s Chrysler Pacifica also turned up no incriminatory evidence.
Conclusion on Evade Police
[84] For all the foregoing reasons, I find Mr. Johnson not guilty on count 7 of operating a motor vehicle to evade the police.
The Execution of the Warrant and Items Seized
The Crown’s Evidence
[85] At about 2:20 a.m., the police at the scene of the search entered the apartment to clear it for safety. D.C. Haljuste of the MCU conducted entry and exit videos inside the entrance of the apartment unit and of the interior. He also took videos of items the officers involved in the search brought to his attention.
[86] There were two bedrooms. D.C. Ceresoli was tasked to search a bedroom and the bathroom of the apartment. The bedroom has an ensuite bathroom and a walk-in closet. The evidence is that this is Mr. Burke’s bedroom.
[87] D.C. Ceresoli testified he found men’s clothing and shoes inside the closet. He observed a pair of Timberland boots on the floor of the closet. He found a sock in one of the boots and a firearm in the other boot. D.C. Ceresoli called D.C. Haljuste to videotape what he found.
[88] D.C. Ceresoli removed the firearm and the sock from the boots and returned them to where he found them for the officer to videotape them. The firearm was loaded with one round in the chamber and other rounds in the magazine. In evidence are still photos of the boots with the sock and firearm inside. DNA and fingerprint analyses were conducted on the firearm which had negative results. No such tests were done on the sock, boots or jeans.
[89] Also in the closet on a wire mesh shelf above the clothing, D.C. Ceresoli found a pair of folded jeans. In a back pocket of the jeans, the officer found two pieces of identification in Mr. Johnson’s name: an expired health card dated December 13, 2010 with an expiry date of June 2013; and a G1 driver’s licence issued on April 10, 2013 with an expiry date of August 25, 2016 containing an address on Sheppard Ave. W. D.C. Haljuste videotaped the jeans and identification cards and still photos of those items were made exhibits. Mr. Johnson testified that neither of those items would have been useful to him at the time he was arrested.
[90] Mr. Burke testified the jeans in the closet containing Mr. Johnson’s identification were not his.
[91] D.C. Dickie of the MCU was involved in the search of the premises. He was tasked to search the living room, washroom and the laundry room. In the living room in front of a sliding glass door, he located a blue plastic bag containing a smaller clear plastic baggie containing what was later found to be about 1⁄2 lb. of marijuana. The officer found nothing else of significance to the investigation in the other areas he searched. No fingerprints or DNA analyses were conducted on the plastic bags containing the marijuana. Mr. Johnson denied the marijuana was his.
[92] When D.C. De Sousa of guns and gangs arrived at apartment 1714, videotaping was being conducted. He was assigned to search the drawers of a dresser in Mr. Burke’s bedroom where the gun was found. D.C. De Sousa found several pieces of identification in Mr. Johnson’s name and documentation in Mr. Burke’s name in the top drawer of the dresser. The officer found the following items associated with Mr. Johnson:
• an expired temporary G2 driver’s licence in Mr. Johnson’s name issued September 12, 2013 with an expiry date of August 25, 2016;
• An insurance slip for the Chrysler Pacifica dated July 3, 2013 with an expiry date of August 13, 2013 with an address in St. Catharines, Ontario.
[93] In Mr. Johnson’s wallet, seized on his arrest, he carried his current photograph health card issued in June 2013 with an expiry date of June 2018. The wallet also contained his current G2 permanent drivers licence issued September 18, 2013 with an expiry date of August 25, 2016. He explained that when he would wash his car at a carwash near 710 Humberwood Blvd. he would often remove refuse and things he did not need like old identification and leave them at Mr. Burke’s apartment. Mr. Johnson testified neither the temporary G2 licence nor the G1 licence were of use to him in June 2014. The G2 permanent driver’s licence and health card found in his wallet when he was arrested superseded previous ones.
[94] D.C. De Sousa found a number of government documents in Mr. Burke’s name that were current. All but one of the documents, a letter from the Trillium Drug Benefit Plan, had the 710 Humberwood Blvd. address. The Ministry of Community & Social Services cheques, cheque stubs and correspondence related to Ontario Disability Support Benefits contain Mr. Burke’s address. All the documents related to Mr. Burke were dated April, May and June 2014.
[95] All other items seized were videotaped on the scene where the items were found. It was not explained why there was no such video recording depicting D.C. De Sousa’s seizure of these items at the scene.
[96] Mr. Burke testified that the documents found in the dresser drawer bearing his name were his. He explained that if some of Mr. Johnson’s documents were found in his dresser, he likely found them lying around the apartment and threw them into his drawer. He said because he is blind, he would not know what the documents were unless someone told him.
[97] D.C. Caccia also arrived at apartment 1714 at about 2:20 a.m. on June 24th. He had retrieved the key to the apartment from Det. Johnston and opened the apartment door. He had no further role with respect to the apartment after he opened the door. However, he was responsible to search the underground garage. The key chain with the apartment key on it also contained a key for the Chrysler Pacifica. D.C. Caccia went to the garage and located the Chrysler Pacifica in parking spot #69.
[98] At about 3:10 a.m., D.C. Caccia videotaped the vehicle in its parking spot. He had a search warrant for the vehicle. He unlocked the vehicle and performed a cursory search of the glove box, door pockets and trunk to document what was inside. Det. Little ordered the Chrysler Pacifica be towed from the underground garage and gave instructions to the officer at the police station who performed the control unit search of the vehicle. Det. Little was advised that nothing of evidentiary value was found in the car.
[99] There is evidence of seven parking tickets for parking without a permit at 700/710 Humberwood Blvd., dated in April and May 2014 that were for Mr. Johnson’s Chrysler Pacifica.
[100] On June 24th at about 2:20 a.m. D.C. Randhawa went to apartment 1714. After the unit was cleared, at 12:20 p.m. D.C. Randhawa went in as the officer in charge of the search warrant package log which contained a list of all items seized. Det. Little testified she was involved with collecting and documenting the items seized. From Mr. Johnson $630 (Cdn) was seized; from Tinnelle McCormack $1,855 (Cdn) was seized; and from Mr. Burke $1,460 (Cdn) and $40 (U.S.) were seized.
The Defence’s Evidence
The Law on Possession – The Firearm and Marijuana
[101] Possession is defined under s. 4(3) of the Criminal Code as follows:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[102] Possession must be decided in relation to both the firearm and marijuana seized.
[103] The essential elements of the offence of possession are: (a) control of the thing; and (b) knowledge of the thing. Possession involves actual possession or constructive possession of the thing or joint possession by more than one person with the other’s consent. There is no evidence that would support a finding of joint possession with the requisite consent.
[104] Actual possession or custody of a thing refers to having physical custody or control of the thing. Constructive possession extends to situations where a person does not have hands on custody of the thing but has knowledge of the thing and an ability to control it even if they do not have physical contact with it. Constructive possession is a matter to be decided on the facts of each case: [R. v. Grey (1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.)] and [R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, at pp 290-291, (Alta. C. A.)].
[105] The evidence is that Mr. Burke had been a resident of apartment 1714 at 710 Humberwood Blvd. under a lease signed by his father from late January 2014. Mr. Johnson’s name is not on the lease. Mr. Burke testified that since he is legally blind he requires the support and assistance of others in his daily life. He testified that at times he stays with the mother of his baby or his sister and returns to apartment 1714 which he says is his permanent residence.
[106] Mr. Burke was questioned why, when he was arrested on June 24th, he gave as his residence an address on Orpington Cres., Toronto. As noted earlier, Mr. Burke was on bail when he was arrested for the current offences. He explained that the address was that of his sister and that one of the requirements of his bail was that he reside there because his sister was his residential surety.
[107] Mr. Johnson contends he does not live at apartment 1710 but visits there often because he and Mr. Burke are friends who have known each other since childhood. Neither he nor Mr. Burke was present when the drugs and firearm were seized.
[108] Mr. Johnson testified, and Mr. Burke confirmed, that Mr. Johnson does not have his own key to the apartment and Mr. Burke would give him a key for the occasions Mr. Johnson would visit or stay there. Their evidence is that this is why Mr. Johnson had a key for the apartment on June 24th when the police arrested him.
[109] The focus of the inquiry on possession in relation to Mr. Johnson is whether he had constructive possession of the firearm and marijuana since he did not have physical contact with the firearm or marijuana at the time the police seized them.
[110] Mr. Johnson denies knowledge of the firearm and marijuana. It has been held that proof of knowledge is no more difficult than proof of intent.
Knowledge is a state of mind and short of an admission by a person of his state of mind, it must be found to exist in the same way as intent, by proper inferences from facts proved.
[R. v. Larier (1960), 1960 227 (SK CA), 129 C.C.C. 297, at 312, (Sask. C.A.) and R. v. Kelly, 1966 543 (BC CA), [1967] 1 C.C.C. 215 at 222 (B.C.C.A]
[111] The Crown has the onus to prove beyond a reasonable doubt each of the essential elements of possession. This can accomplished through direct evidence or may be inferred from circumstantial evidence. The court may draw appropriate inferences from the evidence that the contraband is found in a place under the control of an accused under circumstances where there is also evidence from which a proper inference may be drawn that the accused was aware of the presence of the contraband: [R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127, at para. 18, (Ont. C. A.); R. v. Sparling, [1988] O.J. No.1877 (Ont. C.A.) and R. v. Chambers, [1985], C.C.C. (3d) 440 at p. 448 (Ont. C.A.)].
[112] The Ontario Court of Appeal provides some guidance on the drawing of inferences. Upholding the trial determination the Court of Appeal adopted the following passage:
In assessing inferences for each piece of evidence the reasonable doubt standard is not applied each time. I am to consider the inference suggested against any other reasonable inference that can be drawn and attribute weight accordingly. All of the evidence that I determine merits weight is then assessed on the reasonable doubt standard.
… that inference must be carefully distinguished from conjecture and speculation and there can be no inferences unless there objective facts which it is sought to establish.
R. v. Pham, supra, at para. [30]
[113] An old English decision has been relied on for the foundational principles adopted by modern courts. The rule in R. v. Hodge provides that a trier of fact may only convict on circumstantial evidence where the evidence is not only consistent with guilt but is inconsistent with any other rational conclusion: [R. v. Hodge (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136 (Eng. C.C.R.)]. To convict, the jury “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”: [R. v. Griffin, 2009 SCC 28, at para. 33, (S.C.C.)]. Watt, J.A., for the Ontario Court of Appeal, also provides guidance on the principles that underlie the proper drawing of inferences:
Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue. It is for the trial judge to determine whether circumstantial evidence is relevant.
Where evidence is circumstantial, it is critical to distinguish between inference and speculation. 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. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.
[David Watt, Watt's Manual of Criminal Evidence (Toronto: Thomson Carswell, 2014) at §9.01].
Conclusion on Possession
[114] The Crown’s position is that there is a sufficient foundation in the circumstantial evidence to establish the essential elements of possession. This is the Crown’s burden. The Crown must prove through the circumstantial evidence that Mr. Johnson had knowledge and control of the contraband seized from apartment 1714.
[115] The Crown argues that Mr. Johnson was an occupant of the apartment and as an occupant would reasonably have had both the knowledge and control of the drugs and firearm. The Crown relies on the frequency with which the officers observed Mr. Johnson and his Chrysler Pacifica at 710 Humberwood Blvd. The Crown relies on the parking tickets for the Chrysler Pacifica, the presence of certain pieces of identification for Mr. Johnson found in the same bedroom where the firearm was found, and the fact that Mr. Johnson had a key to apartment 1714 when he was arrested.
[116] The Crown asserts that during police surveillance the officers observed the Chrysler Pacifica parked in the underground garage in spot #69 on June 22nd and June 23rd and found it parked there in the early morning hours of June 24th during the search of the apartment. Further, to the Crown the seven parking tickets, dated in April and May 2014, provide added support for the regular presence of Mr. Johnson’s car being there and by extension Mr. Johnson’s occupation of apartment 1714.
[117] The fact is Mr. Johnson was not at the apartment on June 24th when the police entered the apartment with the search warrant. He was not there on June 22nd when D.C. Mantle saw the Chrysler Pacifica in the garage because he was spotted by other officers driving the Mazda at that time, and as for June 23rd there is no proof Mr. Johnson was at the apartment on June 23rd when D.C. Randhawa saw the vehicle in the garage.
[118] The Crown places considerable emphasis on Mr. Johnson’s identification located in the bedroom during the search. However, the health card and driver’s licence found in the jeans pocket in the closet and the driver’s licences, health insurance card and insurance slip found in the dresser drawer had been expired for months and were not useful to Mr. Johnson. Moreover, those documents contained residential addresses other than 710 Humberwood Blvd.
[119] The evidence the Crown relies on, in its totality, is not strong proof or indeed any proof that Mr. Johnson lived at apartment 1714. On the other hand, the documents relating to Mr. Burke were current and critical to him as a recipient of health and disability benefits. The documents for the most part had Mr. Burke’s address, and hence are consistent with his evidence that he resided there.
[120] Mr. Burke’s evidence is that he did not know there was a firearm in his bedroom closet or that there was marijuana in his living room. He said he did not own the boots where the firearm was found or the jeans where Mr. Johnson’s expired identification was found. Mr. Burke testified that several times a week he would have many friends over to the apartment to hang out and sometimes to stay overnight. On some occasions Mr. Burke would not be at home when his friends were over.
[121] Mr. Burke testified the dresser where his and Mr. Johnson’s documents were found is his dresser. He said he thought if Mr. Johnson’s documents were lying around the apartment that he might have thrown them into the drawer with his things.
[122] I find the circumstantial evidence is markedly inadequate to establish beyond a reasonable doubt that Mr. Johnson had knowledge and control of the firearm and marijuana. I am required to consider the inference that Mr. Johnson had possession against any other reasonable inference that can be drawn.
[123] Mr. Burke lived in the apartment and many more of his friends would visit the apartment. A reasonable inference can be drawn from those facts and from the weakness of the facts pointing to Mr. Johnson, that any one of those other individuals could have owned the contraband and placed it in the apartment.
[124] For the foregoing reasons, I find the Crown has not established beyond a reasonable doubt that Mr. Johnson was in possession of the drugs and firearm. I find Mr. Johnson not guilty on count 1, possession for the purpose of trafficking the controlled substance marijuana, and count 2 and count 3, unlawful possession of a prohibited loaded firearm.
DANGEROUS DRIVING
The Evidence
[125] Mr. Johnson was charged with dangerous driving for making a left turn at Bloor St. W. and Runnymede Ave. through a red light at Bloor St. and driving at approximately 80 km/hr., as estimated by Det. Johnston, southbound down Runnymede Ave.
[126] As noted earlier, Det. Johnston testified that the only vehicle ahead of him at the red light was Mr. Johnson’s and other unmarked police vehicles were behind them. In contrast, Mr. Johnson testified he saw no other cars when he made the left turn. In any event, Det. Johnston was emphatic that there was no other traffic immediately at the intersection except his and Mr. Johnson’s vehicles. It was about 1:48 a.m. Det. Johnston testified he had to make sure there were no vehicles or pedestrians at the intersection so he could safely make the left turn closely behind Mr. Johnson. He said he only went through the red light because it was safe to do so.
[127] Det. Johnston testified he sped down Runnymede Ave. to catch Mr. Johnson’s vehicle that was speeding ahead of him. The Mazda was in the right lane and Det. Johnston’s vehicle in the passing lane. He drove up to the driver’s side of Mr. Johnson’s vehicle. As noted earlier, Det. Johnston stated that he did not pull up in front of Mr. Johnson to block him. Mr. Johnson’s vehicle was blocked by vehicles in the parking lane.
[128] Mr. Johnson testified that he stopped his vehicle on his own. He said he did not get blocked by parked cars or any other car. He said D.C. Small’s vehicle did not strike the Mazda. As noted above, it was Mr. Johnson’s evidence that when he saw the flashing police lights he realized he was not in danger and he stopped his vehicle on his own in the right lane. He did not try to get away.
The Law
[129] The Criminal Code at s. 249(1) states:
249 (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
[130] The essential elements of dangerous driving required to be proven by the Crown beyond a reasonable doubt are: (a) the accused operated a motor vehicle; (b) the manner the accused operated the vehicle was dangerous to the public in the circumstances, and; (c) the accused knew or ought to have known that the manner of driving was dangerous.
[131] The provision sets out the skeletal features of the actus reus and mens rea of dangerous driving. The courts have given flesh to the words in the statute.
[132] In determining the actus reus the trier of fact must be satisfied from an objective viewpoint that the accused was driving in a manner “dangerous to the public” with regard to all the circumstances. Factors to be considered include “the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”: [R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43, (S.C.C)].
[133] The mens rea is determined with regard to the totality of the evidence including evidence of an accused’s state of mind. R. v. Beatty established that a modified objective test is applied with the offence of dangerous driving. This means the Crown is not required to prove the accused had a positive state of mind like intent, recklessness or willful blindness as is the case with other criminal offences. “[T]he subjective mens rea of intentionally creating danger for other users of the highway within the meaning of s. 249 constitutes a ‘marked departure’ from the standard expected of a reasonably prudent driver”: R. v. Beatty, at para. [47].
[134] The Supreme Court in R. v. Roy held that to determine whether the appropriate degree of fault to meet a criminal standard has been met an inquiry into the distinction between conduct that should attract criminal blameworthiness and that which meets the civil standard of mere carelessness or negligence must be embarked on. The Court insisted on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment: [R. v. Roy, [2012] S.C.R. 6036, at para. 32, (S.C.C.)]. As the Court pointed out:
Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.
[R. v. Roy, at para. 42]
Conclusion on Dangerous Driving
[135] There is no question Mr. Johnson was operating a motor vehicle at the intersection of Bloor St. W. and Runnymede Rd. when he made the left turn on a red light and sped south on Runnymede Rd. at 80 km. /hr.
[136] Making a left turn on a red at a major intersection and speeding down a major street after the turn, on its face and without context, may qualify as driving that is dangerous to the public, However, the law has made it clear that context is critical. Regard must be had to all the circumstances including “the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.”
[137] The driving in question occurred during the very early morning hours. Det. Johnston said there were no vehicles at the intersection but the Mazda Mr. Johnson was driving and his vehicle which was behind the Mazda. Det. Johnston stated with some confidence that, besides the other unmarked patrol cars behind his, there were no other vehicles around. There were no pedestrians near the intersection. Det. Johnston said his certainty stemmed from the fact he was trained to drive in circumstances like those to assess danger and ensure public safety before proceeding.
[138] Det. Johnston conceded that the conditions that faced him when he made the left turn, of necessity, were the same as when Mr. Johnson made the turn immediately before him. Different from Det. Johnston’s evidence, Mr. Johnson’s evidence is that besides the vehicle he was driving, he saw no other cars when he was at the intersection.
[139] Det. Johnston also confirmed that the only vehicles on Runnymede Rd. when he and Mr. Johnson were speeding were his unmarked car and Mr. Johnson’s and the other unmarked cars trailing behind. The ride from the intersection and along Runnymede Rd. lasted mere seconds. Mr. Johnson, Det. Johnston and the other officers did not testify to any danger or risk during the drive on Runnymede Rd.
[140] One cannot reasonably infer from driving that is objectively dangerous alone that the accused “departed markedly” from the standard of care of a reasonable person in the circumstances. To reasonably support that inference the driving must constitute a “marked departure” from the norm.
[141] I cannot say that Mr. Johnson’s driving meets that standard. Hence, his manner of driving does not approach the level of criminal blameworthiness. At most, Mr. Johnson was guilty of the provincial highway traffic offences of failure to stop at a red light and speeding which if he were tried and found guilty would attract not criminal sanction but the imposition of driving demerit points.
[142] I find the Crown has failed to prove beyond a reasonable doubt that Mr. Johnson drove in a manner dangerous to the public. I find Mr. Johnson not guilty on count 6 dangerous driving.
MISCHIEF TO PROPERTY
The Facts
[143] Mr. Johnson is charged with mischief to property under $5,000 on the allegation that he struck Det. Johnston’s vehicle.
[144] The allegation is when Det. Johnston called for the takedown by commanding other officers to box the Mazda in, that Det. Johnston’s vehicle was at the rear of Mr. Johnson’s vehicle and other officers’ vehicles were at the driver’s and passenger’s sides of the Mazda.
[145] As noted earlier, Det. Johnston’s allegation is that the damage on the Mazda was caused by Mr. Johnson forcing his way out of the box. According to Det. Johnston, there is damage to the right front panel, slight damage to the glass of the right turn signal and scuffing to the right front bumper of the Mazda where the Mazda’s bumper contacted the Subaru driven by Det. Johnston. However, it is the evidence of Mr. Johnson, Mr. Burke and Ms. Fletcher that they did not hear or feel the Mazda strike another vehicle.
[146] There is also evidence there was contact between the Mazda and D.C. Small’s vehicle causing scuffing to the Mazda. It appears the indictment is only referring to damage to one police vehicle. I take the indictment to be referring to Det. Johnston’s vehicle. As noted earlier, there is no evidence of damage to D.C. Small’s vehicle.
[147] There are photographs of the damage to the Mazda but no photographs of damage to the Subaru driven by Det. Johnston which is the subject matter of the mischief to property charge. The only evidence about damage to the Subaru was given by Det. Johnston and D.C. Mantle. They both allege they observed a dent on the plastic covering of the rear left bumper.
Conclusion on Mischief to Property
[148] The Criminal Code provides at s. 430(1)(a):
430 (1) Every one commits mischief who wilfully
(a) destroys or damages property;
[149] The essential elements of mischief to property are (a) that the accused damaged property (b) the accused willfully damaged the property damage, and (c) that the damage to the property was unlawful. The Crown has to prove each of these elements beyond a reasonable doubt
[150] The evidence from the officers about damage to the Subaru is scant. It is not clear to me why the police took no pictures of the Subaru to substantiate this charge and yet they took pictures of the Mazda. When I look at the evidence as a whole I am not satisfied the Crown has established beyond a reasonable doubt that Mr. Johnson damaged the Subaru or that if he did cause the damage that he did it willfully.
[151] Mr. Johnson’s, Mr. Burke’s and Ms. Fletcher’s evidence, which I have accepted as a reasonable explanation, is that they believed they were fleeing for their lives from what they thought might be gang-related retaliation against Mr. Burke. Under these circumstances, if Mr. Johnson caused the damage he would not have done so willfully.
[152] In the result, I am not satisfied the Crown has proven that Mr. Johnson committed mischief to property. I find Mr. Johnson not guilty on count 8, mischief to property.
VERDICT
[153] For the foregoing reasons, I am satisfied the Crown has failed to prove Jermaine Johnson’s guilt beyond a reasonable doubt on counts 1, 2, 3, 4, 5, and 6 on the indictment.
[154] I therefore find Jermaine Johnson not guilty on all counts on the indictment and acquittals will be entered accordingly.
B.A. ALLEN J.
Released: December 8, 2016
CITATION: R. v. Johnson, 2016 ONSC 7615
COURT FILE NO.: CR-16-4000422-0000
DATE: 20161208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JERMAINE JOHNSON
Accused
REASONS FOR DECISION
B.A. ALLEN J.
Released: December 8, 2016