IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Information No. 43980-1 charges the accused Dustin Daniel Heltman (“Mr. Heltman”) with the following offences:

[2]           The alleged offence date was November 14, 2015 and the location was at or near Prince George, B.C.

[3]           Like every accused person facing criminal charges in Canada, Mr. Heltman is entitled to the benefit of the presumption of innocence.  He will only be convicted of the offences with which he is charged if the Crown succeeds in discharging its burden of proving all of the essential elements of those offences beyond a reasonable doubt.  The Crown’s onus of proof in this and every criminal case is an onerous one.

[4]           That said, while the Crown retains its burden in all respects in this prosecution, counsel for Mr. Heltman has stated clearly, in written submissions, that the real issue before the court is identification.  Those written submissions commence with these words:

[5]           That the real issue before the court is identification was readily apparent from the Crown evidence that was challenged by Mr. Heltman’s counsel during cross-examination, the Crown evidence that was not challenged, and the defence evidence that was led through Mr. Heltman himself.

[6]           There is no real dispute that in the early afternoon on November 14, 2015, in Prince George, British Columbia, a suspect (the “Suspect”) driving a blue Dodge Caravan (the “Caravan”) engaged in a spree of vehicular offending.

[7]           The spree began with a rear-end collision on Highway 97 near the College of New Caledonia.  Crown witness Geoffrey McDonald (“Mr. McDonald”) was driving his Tacoma pickup truck south in the outside lane on Highway 97, towing a small utility trailer.  The trailer was empty because Mr. McDonald had just delivered a load of leaves to a transfer station.

[8]           Mr. McDonald entered onto Highway 97 by turning left from a side street.  As he did so he could see the southbound Caravan approaching him, but at such a distance that it was safe for him to proceed south in front of it.  At that point the Caravan displayed no damage.  

[9]           As Mr. McDonald carried on driving south on Highway 97 at about 50 km/H (the posted limit was 60 km/H), he felt an impact from behind.  Because of the canopy mounted on the box of his pickup, he had to rely mainly on his truck’s side mirrors to observe what was happening behind him.  Looking in his side mirror Mr. McDonald could see that the Caravan—now displaying a damaged hood and grille and a broken headlight—was pulling into the passing lane to his left.  It was the only vehicle behind him. 

[10]        Mr. McDonald first thought that the driver intended to find a place where they would both pull over and exchange insurance information.  That turned out not to be the case.  As the Caravan passed beside him in the passing lane he could see that the driver—that is, the Suspect—was a white male wearing a dark coloured, long-sleeved hoodie or sweatshirt.  Mr. McDonald acknowledged that the time he had to make these observations was very brief.

[11]        Rather than slowing to pull over, the Suspect accelerated rapidly—that is, in Mr. McDonald’s estimation, easily to 1 ½ times his own speed or, at least 75 km/H.  He was also noted to be covering part of the right side of his face with his right hand.  Mr. McDonald then deduced that the Suspect had no intention of stopping and exchanging insurance information with him but, rather, was minded to leave the scene of the collision.

[12]        Mr. McDonald therefore gave chase, hoping to obtain a clear view of the Caravan’s licence plate number.  All he was able see, however, was that it began with the letter “B”.  While pursuing the Caravan he placed a 911 call to report the hit-and-run incident and the Suspect’s flight from the scene.

[13]        As the two, southbound vehicles approached the controlled intersection at Highway 97 and 22nd Avenue, Mr. McDonald observed that there was another vehicle waiting to turn left (east) onto 22nd Avenue in the dedicated left-turn lane, facing a red light for that lane.  There were also two northbound vehicles on Highway 97 waiting to turn east.  The signal for north/south traffic on Highway 97 was green.  Mr. McDonald saw the Caravan enter the intersection and turn left onto 22nd Avenue, but not from the dedicated left turn lane but from the through lane next to it.  It then proceeded east along a short, curving street called Griffiths which eventually becomes 20th Avenue.  Mr. McDonald estimated the Caravan’s speed during this manoeuvre to be 70-80 km/H and accelerating.

[14]        Mr. McDonald continued to follow the Caravan, still in the hope of getting the full licence plate number.  He observed smoke and steam escaping from its front end as it accelerated and widened the distance between it and his own pickup truck.

[15]        When the Caravan reached the intersection of 20th Avenue and Massey Drive, Mr. McDonald estimates it was approximately 150 metres ahead of him.  With traffic flowing both east and west on Massey Drive and one vehicle waiting to turn left (east) onto Massey Drive, the Caravan lurched to a stop at the intersection and then, as soon as a space in the traffic opened up, the Suspect (in Mr. McDonald’s words) “gunned” his vehicle into the intersection and proceeded east on Massey Drive, continuing to accelerate.  Just before losing sight of the Caravan on Massey Drive—and while he continued in communication with the 911 dispatcher—Mr. McDonald observed a police SUV coming west on Massey Drive make a U-turn near the entrance to the YMCA parking lot and begin following the Caravan. 

[16]        The driver of the police SUV was Crown witness and RCMP Constable Brent Moerike (“Cst. Moericke”).  It was mainly the condition of the Caravan—that is, its damaged hood, grille and headlight—that caught his attention and led him to perform a U-turn and begin following it.  He estimated that it was being driven at a speed of 70 km/H—i.e., 20 km/H over the posted speed limit of 50.  Because the Caravan was approaching him when he first noticed it, he was able to make certain initial observations of its driver and his clothing, although the time he had to do so was only a matter of a few seconds.

[17]        Once he got his SUV turned around, Cst. Moerike pursued the Caravan and as it passed through the intersection of 20^th Avenue with Massey Drive he activated his emergency equipment in order to effect a vehicle stop.  The Caravan did not respond but, rather, turned onto 20^th Avenue and proceeded at an estimated speed of 100 km/H through a yellow light and onto Highway 16.  It was at about this time that the officer was able to read the license plate on the vehicle as being “BN194J”.  The Caravan continued eastward toward Victoria Street with smoke pouring out of its engine area. 

[18]        Believing that it was unsafe to continue a high-speed pursuit, Cst. Moerike de-activated his emergency equipment, slowed his own rate of speed and continued to follow the Caravan.  He then saw it weave through traffic and drive eastward through the intersection of Highway 16 and Spruce Street when the light controlling eastbound traffic was red.  The Suspect used a westbound lane to do so, still at a high rate of speed.  In Cst. Moerike’s words, “He drove through at such a rate of speed that his wheels were actually when he hit the bumps leaving the roadway” (Transcript, August 2, 2016, pp. 45-46).

[19]        The Highway 16/Spruce Street intersection is situated in a busy neighbourhood where many residents do not have vehicles and pedestrians are plentiful.  The Suspect continued driving the Caravan toward the intersection between Highway 16 and Victoria Street where a red light was controlling eastbound vehicles, including the Caravan.  In his approach to that intersection, to avoid other vehicles, the Suspect drove the Caravan up onto the sidewalk.  In Cst. Moerike’s words:

[20]        Noting that the Caravan turned right onto Quince Street after getting through the Highway 16/Victoria Street intersection, Cst. Moerike decided, too, to turn right (south) but on Victoria (which runs parallel with Quince but one block before it).  He travelled one block south and then turned left on Porter Street (proceeding east again) to where that street and Quince—the street he had seen the Caravan turn onto—intersect.  Looking left (north) up Quince from the Porter/Quince intersection he saw a male about 25-30 metres away, running south, down the middle of Quince, toward him.  Cst. Moerike believed then, based in part upon the male’s appearance and clothing, that he was the Suspect who had been driving the Caravan he had been following to that point.  Moreover, looking past the male, he could see the Caravan, with no one in the driver’s seat, rolling down Quince Street toward a power pole with its driver’s side door hanging open.

[21]        Based on his belief that the approaching male was likely the Suspect, Cst. Moerike activated the emergency equipment in his police SUV again and, while proceeding north on Quince, tried to use the SUV to block the Suspect’s movement on foot by wedging it against a fence in front of him.  During this manoeuvre the officer had the male he believed to be the Suspect under observation for a good deal longer than on the first occasion and at close range—at one point, only an arm’s length away—and he again noted certain features and characteristics of his face and clothing that, to his mind, confirmed his belief that the male was the Suspect.

[22]        Cst. Moerike’s manoeuvre to block the male’s further progress south on Quince was, ultimately, unsuccessful.  The male slipped between the fence and the police SUV and ran down an alley.  Cst. Moerike drove after him and did catch up to him; however, the male at that point leapt over a fence, fell, got up and then continued running away.  At that point the officer lost sight of him.

[23]        Cst. Moerike thereupon returned to Quince Street where other officers, including Crown witness Cst. Van Turmel (“Cst. Turmel”), were securing the Caravan.  The vehicle was then seized and towed to the RCMP detachment and searched.  Cst. Moerike made enquiries that confirmed to him that the registered owner of the Caravan—one Carl Jays—was incarcerated in the Kent Institution.  This satisfied him that the registered owner was not the Suspect.

[24]        Among the contents located in the search of the Caravan was a Microsoft cell phone that, upon police examination, prompted further investigative inquiries.  Those led, ultimately, to a photo taken in the course of earlier police dealings with a “Dustin Daniel Heltman” (see Exhibit 4).  The officer recognised the person in the photo to be the Suspect whom he had first seen briefly in the driver’s seat of the Caravan before the vehicle chase began and whom he had observed at much closer range later when he found the male running down the middle of Quince Street away from the driverless Caravan and toward his police SUV.

[25]        The time period during which these events occurred on the offence date of November 14, 2015—beginning with the initial collision between the Caravan and Mr. McDonald’s utility trailer and concluding with the seizure of the Caravan—was approximately one hour, running from about 2:30 to 3:30 p.m.

[26]        On the offence date of November 14, 2015, Mr. Heltman was subject to an indefinite driving prohibition.  That prohibition was imposed on July 4, 2015, pursuant to s. 251(4) of the Motor Vehicle Act, on the basis of an allegation that on that date he operated a motor vehicle without being the holder of a subsisting driver’s licence: see Exhibit 3 and Transcript, August 3, 2016, pp. 29 and 37.

[27]        Once the pursuit of the Caravan had been taken over by police on Massey Drive near the YMCA, Mr. McDonald saw no need to continue his pursuit of it.  He had plans to go to Costco but then discovered that the utility trailer—which he had until then thought was still attached to his pickup—was missing.  He therefore placed another 911 call to determine whether the trailer was blocking traffic somewhere.  The dispatcher advised him that nothing had been reported and so Mr. McDonald then returned to the scene of the hit-and-run collision.

[28]        Upon arriving there he found the trailer 40’ from the highway, sitting on the lawn near New Caledonia College.  It was damaged beyond repair.  The collision had also caused some damage to his pickup.  ICBC processed Mr. McDonald’s claims for both and paid him approximately $2,100 for the pickup truck damage and $459 as write-off compensation for the utility trailer.

[29]        As I have noted, it is not seriously disputed in this prosecution that someone (that is, the Suspect) drove the Caravan in the dangerous manner described in the foregoing outline of uncontroversial facts and committed the hit-and-run and driving offences enumerated in Information No. 43980-1.  Rather, what is disputed is the Crown’s contention that the driver of the Caravan who committed those driving offences was Mr. Heltman. 

[30]        The Crown confidently argues that the evidence led at trial furnishes proof beyond a reasonable doubt that the Suspect involved in the hit-and-run, and dangerous and erratic driving, events chronicled above was Mr. Heltman.  Counsel for Mr. Heltman argues, to the contrary and just as confidently, that it would be unsafe to convict Mr. Heltman of any of the subject offences, given:

[31]        Mr. Heltman’s decision to call defence evidence contradicting the identification evidence led by the Crown though its witnesses brings credibility into play as a central factor in the determination of the outcome of this prosecution.  Wherever credibility becomes a factor in this manner, courts must act on the guidance that is found in the reasoning of the Supreme Court of Canada in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 as augmented by the B.C. Court of Appeal in R. v. H.(C.W.), (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (C.A.).  Applying that protocol to the case at bar, on each count:

[32]        Late in these proceedings, as is his right, Mr. Heltman elected to call defence evidence.  He was the only defence witness to testify.  However, after he began to do so, it became apparent at a certain point that some of that evidence addressed, among other things, a possible alibi defence.  Having received no notice that Mr. Heltman intended to call an alibi defence, Crown counsel raised an objection.  There then ensued a skirmish as to whether the evidence Mr. Heltman wished to give was, indeed, alibi evidence.  Ultimately, I decided to allow the evidence to be adduced, subject to hearing argument later as to whether it was alibi evidence or not, and subject as well to a possible Crown motion to re-open its case to call rebuttal evidence if Mr. Heltman’s testimony was ultimately ruled to be alibi evidence.

[33]        I did rule that part of what was covered in Mr. Heltman’s testimony was alibi evidence, notwithstanding its diffuse and non-specific nature.  (My Ruling in that regard is attached to these Reasons as Appendix “A”.)  The trial therefore had to be adjourned to permit the Crown to investigate the alibi defence.  After taking time to do so, the Crown moved to re-open its case to call the rebuttal evidence of Heather Hall (“Ms. Hall”), a person who figured in Mr. Heltman’s alibi testimony.  I allowed that motion.

[34]        The general tenor of Mr. Heltman’s alibi evidence was that on the offence date of November 14, 2015, he was, as was usual during his month-long stay in Prince George, out and about with his brother, Robert Gordon Heltman (“Robert”) and Robert’s girlfriend Leah Brisson (“Leah”).  He testified that he visited Prince George for only a month, beginning on November 3rd, and that the purpose of the visit was to have a vacation.  While in the city he mainly resided with Robert and Leah (and Leah’s mother whose name he could not recall).  Mr. Heltman also testified that he occasionally resided with his “friend Megan”.

[35]        Somewhat surprisingly, while Mr. Heltman could give very little detail about what he was doing and where he was doing it for the entirety of his time in Prince George, he was able to recall some details about his comings and goings on the offence date of November 14, 2015, and the day preceding it.  He recalled, for example, that he slept at Robert and Leah’s residence the night of November 13th, waking up there on November 14^th.  He also recalled that he went out with them for breakfast on that day at about noon.  However, he doesn’t remember how long it took them to complete their meal (“maybe an hour”), or what they ate.

[36]        It will be recalled that the offences allegedly committed by Mr. Heltman were committed between 2:30 and 3:30 p.m. on November 14th.  The vagueness of Mr. Heltman’s evidence about what he was doing at that time is well captured in the following passage from his cross-examination taken from the Transcript, August 3, 2016, pp. 33-34:

[37]        Upon further questioning Mr. Heltman was able to recall some detail about going, with Robert and Leah, to the house of a woman whose name was “Heather” during the evening of November 14, 2015.  He could not remember the surname for “Heather” but it is beyond controversy that she is Ms. Hall.  Mr. Heltman further explained that Ms. Hall was a person who sometimes served as a designated driver for him, Robert and Leah, and that he believed that he, Robert and Leah went to her residence during the evening on the offence date in order that she might drive them to the casino where they planned to have drinks.  Mr. Heltman further testified that Ms. Hall’s car—i.e., the one she drove them to the casino in—was a silver Dodge Avenger: Transcript, August 3, 2016, p. 38. 

[38]        Significantly, despite all of that detail, Mr. Heltman’s evidence throughout remained that he had no idea what happened between leaving the restaurant at about 1:00 p.m. and going to Ms. Hall’s residence in the evening of November 14th. 

[39]        I find it curious that, while he drew a complete blank about everything that occurred between about 1:00 p.m. and the evening of November 14, 2015, when he was asked about the trip he and his friends to the casino in Ms. Hall’s car that evening (hours after the offences at issue were committed), Mr. Heltman’s memory seemed to click back into focus.  For example, he knew that Leah was seated in the front seat, next to Ms. Hall (the driver), and that he and Robert were seated in the back.  He recalled that Ms. Hall parked her car at the casino and that he and his companions walked to its front door from where she parked and entered via that door.  While Mr. Heltman could not remember when he and his companions left the casino, he did recall that they did so when they ran out of money: Transcript, August 3, 2016, pp. 42-44.

[40]        Mr. Heltman also recalled, during his cross-examination, that when he, Robert and Leah were finally ready to leave the casino on the evening of November 14th, Ms. Hall returned there to pick them up and that she drove them somewhere in her silver Dodge Avenger.  He testified that partying likely continued until Ms. Hall finally drove them to the house where Robert and Leah resided: Transcript, August 3, 2016, pp. 46-48.

[41]        This alibi evidence provokes suspicion and scepticism in the court’s mind.  It seems to be fairly replete with details regarding where Mr. Heltman was and what he was doing at certain times of the day on November 14, 2015.  However, for the period from 1:00 p.m. until the evening—i.e., a part of the day that includes the time during which the evidence shows the subject offences were committed—his memory failed him utterly.  In his words (at Transcript, August 3, 2016, p. 50), “Like I said, I don’t know, we did many activities while I was up here.  It could have been any one of them.”

[42]        A complete lack of specificity of this kind makes it difficult for the Crown to investigate an alibi defence—normally, before the trial begins or, in the present case, after the Crown brought successful motions to adjourn and call rebuttal evidence after being taken by surprise by the alibi evidence, mid-trial. 

[43]        As the Ontario Court of Appeal held in R. v. Tomlinson, 2014 ONCA 158 at para. 121:

[44]            Mr. Heltman’s alibi evidence was neither adequately particularised nor was it the subject of timely disclosure.  Details about his whereabouts and activities at the time on the offence date when he allegedly committed the subject offences could have been used by the Crown to investigate and independently verify or refute his alibi.  Mr. Heltman’s memory is conveniently free of any recollection whatsoever of his whereabouts and activities at the material time on November 14th, leaving very little recourse to Crown to investigate the veracity of his alibi defence.  Moreover, the Crown’s ability to carry out that investigation was greatly delayed.  It is generally accepted that evidence deteriorates with the passage of time: documents go missing, memories fade, witnesses become difficult to locate.  The fact that that actually occurred in the present case is reflected in Crown’s closing argument where Crown counsel states at para. 45(e) the following:

[45]        Where a witness's recollection is selective in ways that favour the case for the party on whose behalf he or she testifies, the court can properly turn a sceptical eye on that testimony, a fortiori where (as here) the witness is the accused him- or herself.  A conveniently selective memory has been recognised in other cases as a factor that can legitimately cast doubt upon a witness's credibility: see, for example, R. v. Giroux, [2007] B.C.J. No. 2206 (C.A.), R. v. Nicol, [2004] S.J. No. 281 (Q.B.) and R. v. Matthews, 2008 NSCA 34 (CanLII), [2008] N.S.J. No. 150 (C.A.). 

[46]        On grounds both of lack of particularity and lack of timeliness, I turn a sceptical eye on Mr. Heltman’s alibi evidence.  Indeed, upon the authority of cases like Tomlinson, I consider that in this case I am justified in drawing an inference adverse to Mr. Heltman’s credibility in relation to his alibi defence. 

[47]        I am not persuaded by defence counsel’s Reply submission, based on R. v. Witter, 1996 CanLII 4005 (ON CA), [1996] O.J. 358 (C.A.), that I should decline to draw that adverse inference.  Witter is a case about jury trials and instructions to juries about the failure of an accused raising an alibi defence to call alibi witnesses as part of the case for the defence.  The matter before me is not a jury trial and the objection taken by the Crown is not that Mr. Heltman failed to call Robert and Leah as defence witnesses to support his alibi.  The objection here is that Mr. Heltman did not give properly particularised and timely notice of his alibi defence and that, as a consequence, the Crown was prejudiced in its ability to investigate that defence.  On the undisputed authority of Tomlinson and other such decisions, inadequately particularised and untimely disclosure of an alibi defence by an accused person can justify the court in drawing inferences adverse to that accused person’s credibility.  Witter in no way derogates from that.

[48]        The credibility of Mr. Heltman’s evidence was further eroded by the inconsistencies noted between his account of certain facts, and the account given by Ms. Hall when she was called to give rebuttal testimony.  For example, Ms. Hall testified that the vehicle she owned and operated when she drove Mr. Heltman, Robert and Leah to the casino during the evening of November 14, 2015, was a burgundy Impala whereas Mr. Heltman testified that it was a silver Dodge Avenger.  Ms. Hall testified that she did, ultimately, purchase a silver Dodge Avenger, but not until months later, in June or July of 2016: see Transcript, February 10, 2017, pp. 4-5. 

[49]        Ms. Hall also testified that she believed that Mr. Heltman had a vehicle and that it was a van: Transcript, February 10, 2017, p. 10.  This calls into doubt Mr. Heltman’s claim that at no time did he drive any vehicle when he was in Prince George and, a fortiori, his claim that “I have never driven a van in my life”: see, Transcript, August 3, 2016, p. 19.

[50]        Altogether, an alibi defence (like any other defence) must have an “air of reality”: see Tomlinson at para. 51 and R. v. Cinous, 2002 SCC 29.  Mr. Heltman’s alibi defence lacks an air of reality, in part because it is conveniently free of detail that would assist in its independent verification.  When Mr. Heltman contended that he recalls unimportant details about his activities at certain times on the offence date, but nothing at all for several hours during which the offences with which he is charged were allegedly committed, he seriously undermined his own credibility.  Beyond that, Mr. Heltman’s alibi defence was, as I have noted, raised at the eleventh hour without proper advance notice to the Crown.  These factors justify the drawing of an inference adverse to the credibility of his alibi defence.

[51]        I have done so.

[52]        I am mindful of the fact that Mr. Heltman is under no obligation to prove his alibi defence.  His challenge in that regard is to use the defence to raise a doubt.  I have no hesitation in stating that Mr. Heltman’s alibi-related testimony was sufficiently wanting in credibility that it does not suffice even to raise a doubt.  Altogether, and for the reasons I have outlined above, I reject that evidence and, thus, must now turn to consider the Crown’s evidence of identification.

[53]        What follows below is an item-by-item assessment of the evidence the Crown says should persuade the court, beyond a reasonable doubt, that the Suspect involved in the hit-and-run and driving offences recorded in Information No. 43980-1 was Mr. Heltman.

[54]        There are two items of physical evidence of identification that merit discussion in these Reasons for Judgment.  One is a cell phone found in the Caravan and the other is a photograph of Mr. Heltman.  For reasons that are explained below, there is an important linkage of one to the other.

[55]        Cst. Moerike gave testimony about a Microsoft cell phone that police found, on the offence date, had been left on the passenger’s seat of the Caravan.  It was seized at scene by Cst. Moerike’s colleague, Cst. Turmel, as a police exhibit.  While that cell phone was not itself ultimately tendered in evidence by the Crown, it is visible in the photograph of the Caravan’s interior marked as Exhibit 5, photo 17.JPG.

[56]        While he contends that it had been stolen or lost prior to the events at issue in this prosecution, Mr. Heltman did admit under cross-examination that the Microsoft cell phone seized from the Caravan likely belonged to him:

[57]        Evidence of the presence of a cell phone that Mr. Heltman admits “very well could be [his],” while not definitive, is nevertheless some evidence that ties Mr. Heltman to the Caravan and the events addressed in the narratives of Mr. McDonald and Cst. Moerike regarding the way the Caravan was driven on the offence date.  It thus constitutes some evidence of identification.[1]

[58]        Having located the cell phone in the Caravan, once back at the detachment and making use of information obtained from it, Cst. Moerike carried out follow-up investigations via police databases.  Those inquiries yielded the head-and-shoulders photo that has since been marked as Exhibit 4.  In the officer’s own words (see Transcript, August 2, 2016, p. 72):

[59]        While Mr. Heltman continues to dispute that he was the Suspect, he does not dispute the fact that the photo (now marked as Exhibit 4)—which was obtained by Cst. Moerike as a result of his follow-up investigations after locating the cell phone—is a photo of him (Mr. Heltman): Transcript, August 3, 2016, p. 19.

[60]        The evidence at trial was unclear on the question of precisely when the exhibited photo of Mr. Heltman was taken.  In his testimony Mr. Heltman could only go so far as to agree that it was taken “somewhere between 2015 and 2016”: Transcript, August 3, 2016, p. 20.  For that and other reasons, the photo cannot be taken to be proof of Mr. Heltman’s exact appearance at the time he was observed by Cst. Moerike on the offence date.  However, Cst. Moerike was clear in his evidence that when his researches turned up the photo, he straightaway recognised the subject of it to be the Suspect who drove the Caravan during the car chase and who he encountered face-to-face at close range running down Quince Street with the driverless Caravan rolling down that street behind him. 

[61]        Cst. Moerike testified that he recognised the photo to be a depiction of the Suspect, despite the fact that certain aspects of the Suspect’s appearance on the offence date as he reported them—bad teeth and pock-marked skin—were not apparent in the photo or, indeed, apparent in Mr. Heltman’s physiognomy when he was present in the courtroom at trial.  While the image that is now Exhibit 4 is not perfectly clear, and does not depict Mr. Heltman’s teeth at all, it does not appear to show the unhealthy skin that was mentioned by Cst. Moerike in his testimony. 

[62]        Of course, facial appearances can change over time, just as an individual’s visible state of health can change over time.  Nevertheless, whatever changes may have occurred between the time the exhibited photo was taken and the offence date (and between the offence date and the dates of trial), those changes did not cause Cst. Moerike to doubt that the person depicted in Exhibit 4 and the Suspect were one in the same person.  Similarly, Cst. Moerike also identified Mr. Heltman as the Suspect when he saw him at trial. 

[63]        The foregoing constitutes some evidence of identification.  That is to say, Cst. Moerike’s testimony that he recognised the Suspect as being the same person as the person depicted in Exhibit 4 and who ultimately attended at trial (both, indisputably, being Mr. Heltman) is some evidence, though not definitive evidence, that the Suspect is Mr. Heltman.

[64]        In assessing the evidence just mentioned alongside all of the other evidence of identification I must assign it its proper weight.  I begin that analysis with consideration of the in-court, dock identification of Mr. Heltman.  While recognising that that evidence has a place in the constellation of identification evidence that I must ultimately consider in the aggregate, dock identifications comprise an inherently weak category of identification evidence and I therefore assign the dock identification evidence here little weight: see, for example, Reitsma v. The Queen (1998), 1998 CanLII 825 (SCC), 125 C.C.C. (3d) 1 (S.C.C.).

[65]        Counsel for Mr. Heltman urges the court to proceed with great caution and to attribute very little weight to Cst. Moerike’s evidence in which he confidently testified that he recognised the person in the photo marked as Exhibit 4 to be the Suspect.  In his written submissions, at para. 43, he said this:

[66]        I do not disagree with counsel that the court must be cautious in weighing recognition evidence, just as it must be cautious in weighing eyewitness evidence generally.[2]  There are many authorities that support that proposition: see, inter alia, R. v. Law, [2014] B.C.J. No. 3394 (C.A.) and R. v. Hanemaayer, 2008 ONCA 580 (CanLII), [2008] O.J. No. 3087 (C.A.).  I also acknowledge that, for the reasons given in Law and other binding authorities, the confidence with which the officer gave his evidence that the Suspect and the man depicted in the Exhibit 4 photo of Mr. Heltman are the same person does not enhance the reliability of that evidence.  Experience teaches that witnesses can honestly and confidently give mistaken eyewitness and recognition testimony.

[67]        All of that said, however, when regard is had to the favourable conditions under which Cst. Moerike made his observations of the Suspect—and particularly the conditions on the second sighting when the officer had a period of 25 seconds to look closely at the Suspect’s face, part of which was from a distance of only an arm’s length—I consider that the reliability of the officer’s recognition evidence remains high.  I say that while accepting that during the aforementioned 25 seconds there would have been, as counsel for Mr. Heltman suggests, some “commotion” such that not all of that time would have been taken up with looking at Mr. Heltman’s face.  But I reject the suggestion, made in argument, that all that the officer was able to get on the second encounter was a “fleeting glance”.  That, simply, is not supported by the evidence.

[68]        Although there is no single, markedly distinguishing feature that figures in Cst. Moerike’s descriptions of the Suspect, that does not greatly diminish the confidence I can place in his recognition evidence.  Court acceptance of recognition evidence is not wholly dependent upon the presence of such distinguishing features, or on the ability of witnesses to give detailed descriptions of persons with unremarkable appearances.[3]  See, in this regard, R. v. Oppenheimer, [2007] B.C.J. No. 2453 (Prov. Ct.) at paras 24-25:

[69]        As for counsel’s concerns about the officer’s recourse to a single photograph in the course of determining to his own satisfaction that the Suspect was Mr. Heltman, I do take those concerns into account.  That is to say, I do not wholly discount them.  However, for the reasons outlined in R. v. Schmidt, [2012] B.C.J. No. 1566 (Prov. Ct.) and the cases cited therein—particularly given the favourable conditions for observation and the amount of detail in the description the officer gave of Mr. Heltman—I still consider that Cst. Moerike’s recognition evidence is deserving of considerable weight.  As I stated in Schmidt at para. 19:[4]

[70]        Similarly, it must not be forgotten that Cst. Moerike was involved in a quickly moving police investigation into a spree of offending, including a hit-and-run and multiple driving offences.  As the only officer who had seen the Suspect, Cst. Moerike was under considerable pressure to locate that person and deal with him or her before more, potentially life-threatening havoc might ensue.  In suggesting that in running down promising leads as to who the Suspect might be to further his prospects of apprehending the Suspect the officer ought, in some way, to have declined to use police databases to query certain names in favour of getting other officers to set up a photopack identification process to employ in the investigation in real time, I believe that counsel misconceives the purpose and time demands of a fluid and urgent police investigation.

[71]        Mr. McDonald’s evidence regarding identifying features of the driver of the Caravan (that is, of the Suspect) was very limited, in part because his opportunity to make observations was very brief.  It was an opportunity that one could fairly say was, as defence counsel put it, “fleeting”.  It came immediately after the collision when the Caravan pulled out from behind Mr. McDonald’s car and utility trailer and drove past him.  Mr. McDonald testified that the driver was obviously a white male but he could say little more because, while holding the steering wheel of the Caravan with his left hand, the driver had his right hand splayed across the side of his face, obscuring his features.  Mr. McDonald did, however, also recall that the driver was wearing a dark, long-sleeved garment like a sweatshirt, or fleece or hoodie: Transcript, August 2, 2016, pp. 11-12.

[72]        When he was pressed about not including any reference to a neck tattoo in his description of the Suspect, Mr. McDonald acknowledged that he had not seen one on the driver, but added that “his head was cocked slightly to the right with his shoulder sort of up …” (Transcript, August 2, 2016, pp. 26-27).

[73]        In all the circumstances, Mr. McDonald was, understandably, not asked by Crown counsel to identify the accused, Mr. Heltman, in the courtroom when giving his evidence at trial.

[74]        Counsel for Mr. Heltman submits in his written argument that Mr. McDonald’s evidence “does not assist this Court with identity of the driver of the Caravan” (at para. 9).  I believe that that statement goes too far.  While Mr. McDonald’s evidence of identity is skeletal—having been based on a very brief sighting during which the Suspect actively set about to obscure his facial features by hiding them behind his open hand—it is not entirely free of identifying content or significance.  That evidence provides basic race and gender information about the driver (white and male) and information about his clothing (wearing a dark coloured sweatshirt, fleece or hoodie) that can then be compared to what was observed by Cst. Moerike, the only other eyewitness with identification evidence to give.

[75]        Cst. Moerike first observed the Suspect when he noted the Caravan travelling toward him on Massey Drive at approximately 20 km/H over the speed limit and sporting obvious damage to its front end.  From his vantage point at a considerable distance away from both vehicles, Mr. McDonald considered that Cst. Moerike had only “close to three seconds” to observe the approaching Caravan before executing his U-turn to begin following it.  The evidence that Cst. Moerike gave himself is, essentially, to the same effect: Transcript, August 2, 2016, p. 88.

[76]        Accordingly, I conclude that the actual time available to the officer to gather his first visual impression of the Suspect was about two to three seconds.

[77]        Counsel for Mr. Heltman argues that at the location on Massey Drive where Cst. Moerike first caught sight of the approaching Caravan, his ability to make clear observations of its driver was obscured by “S-bends” in the road.  While Cst. Moerike testified in direct that there are, indeed “S-bends” on Massey Drive, he did not testify (under cross-examination or at any time) that they prevented him from making the observations he said he made of the Suspect during the two or three second period when he saw him approaching in the damaged Caravan.

[78]        Based on his first, and admittedly brief, visual encounter, Cst. Moerike described the Suspect as a white male with a thin build and slender or narrow face, wearing a black hoodie with a white emblem on it.  Of these characteristics, only the reference to the white emblem on the hoodie was specifically identified in cross-examination as not having been referenced in Cst. Moerike’s notes.

[79]        Cst. Moerike’s next opportunity to make relevant observations came when he observed the person he believed to be the Suspect running southward down the middle of Quince Street toward his police SUV with the Caravan rolling down the street behind him, driverless and with its driver’s door open.  The Suspect was 25-30 metres away from the officer at first but, as I have noted, he was running down Quince toward Cst. Moerike and Cst. Moerike was driving up Quince toward him.  Thus, with the gap closing between them, the Suspect became increasingly easy for the officer to observe.  As the officer explained it in the Transcript, August 2, 2016 at pp. 54-55:

[80]        It will be recalled that, eventually, Cst. Moericke attempted to block the Suspect’s escape by wedging him between the police SUV and a fence.  However, the Suspect was able to squeeze through and continue running away.  Cst. Moericke pursued him for some distance in the police SUV as he ran, but eventually lost him. 

[81]        Importantly, as has been noted above, this second, extended encounter permitted the officer to observe the Suspect at close range—at one point at arm’s length—and for a good deal longer than he had had immediately before performing a U-turn on Massey Drive and beginning to pursue him.  In Cst. Moerike’s own words, by comparison to the first encounter, “This time I had a lot more ‑- a lot more time” (Transcript, August 2, 2016, p. 54).  That encounter included a 25-second look at the male’s face (Transcript, August 2, 2015, p. 59).

[82]        Given the closer proximity and longer opportunity to make observations, Cst. Moerike’s recollection of detail noted at the second encounter was, not surprisingly, fuller.  First, he testified that the person he saw first running down Quince Street toward his police SUV (with the Caravan rolling down it behind him, driverless and with its driver’s door open) was a white male with a slender face wearing a black hoodie bearing a white emblem.  These observations concurred with the observations the officer made at the first encounter and, in part on that basis, the officer said that he believed he recognised him to be the male who he had seen earlier on Massey Drive operating the damaged Caravan.  (It must not be forgotten that, as well, the officer drove to the bottom of Quince Street, where it meets Porter, for the very reason that he believed that he would find the Caravan and its driver there and possibly make an arrest.)

[83]        Beyond the descriptive information just mentioned, however, in his evidence-in-chief as recounted in the Transcript for August 2, 2016, pp. 54-59, Cst. Moerike noted that at this point he observed that the male:

[84]        This more detailed identification evidence from Cst. Moerike emerged largely unscathed from cross-examination.  No inconsistencies, divergences or other problems of any great importance were revealed. 

[85]        That does not mean of course that the officer’s evidence was entirely free of inconsistencies and divergences, but in my mind they were not important.  Here I will candidly acknowledge that the court, and Mr. Heltman’s counsel, take different views of what constitutes a significant discrepancy.  For example, I cannot credit the discrepancy referred to in the following quote from counsel’s written submissions as being anything other than trifling, yet it featured prominently in those submissions:

[86]        To the extent that the officer’s observations relevant to identification, listed above, were challenged, I discuss the bases for the challenges and my conclusions as to their significance in the paragraphs that follow.

[87]        A major focus of defence counsel’s attack on Cst. Moerike’s identification evidence in final submissions falls upon the officer’s estimation of the Suspect’s height. 

[88]        There is no direct evidence before the court of Mr. Heltman’s height.  (That is, his height was not measured in the courtroom or by any other witness who testified in the courtroom.)  However, Mr. Heltman testified that he is 6’ 3” in height: Transcript, August 3, 2016, p. 14) and the abstract of his driving record that forms part of Exhibit 3 contains a statement that he is 191 cm. in height (which equates to 6’ 3”).  Moreover, Cst. Turmel agreed on cross-examination that Mr. Heltman was over six feet tall.  Taken together, this evidence leads me to find that Mr. Heltman is 6’ 3” tall (as he said he was).

[89]        The discrepancy between Mr. Heltman’s proven height and Cst. Moerike’s estimate at scene of the Suspect’s height (of 5’ 6” to 5’ 8”) came up while he was under cross-examination, but the officer was not pressed on it or asked directly to explain the discrepancy between the two.  Rather, the questioning detoured into a general discussion of how a metric measure converts to a feet-and-inches measure and never returned to the substance of the particular discrepancy of interest here: Transcript, August 2, 2017, pp. 93-94.

[90]        Nevertheless, it cannot be gainsaid that the fact that there is a difference of several inches between the height estimate Cst. Moerike gave for the Suspect, and other evidence relating to Mr. Heltman’s height, does degrade the Crown’s identification evidence to some degree. 

[91]        However, it must also be recalled that officer made all of his observations of the Suspect from inside his police SUV and, thus, did not—while making them—have his own standing height to use as a reference point or comparator when assessing the height of the person he was observing and pursuing.  This, in my view, must necessarily increase the risk of a height estimation error and reduce the significance of such an error correspondingly.

[92]        Counsel for Mr. Heltman also relies upon what he refers to in submissions as a “five foot fence,” mentioned in Cst. Moerike’s testimony, as a comparator for the Suspect’s height.  This, counsel says, fortifies the defence argument that the Suspect must truly have been someone nearer in height to 5’ 6” or 5’ 8” and not Mr. Heltman—given his height at 6’ 3”—because the officer had something nearby (a yardstick if you will) against which to compare the Suspect’s height. 

[93]        While I not do not wholly discount that submission, I do comment that the officer’s reference to the “five foot fence” was nothing more than a casually stated estimate made from inside a moving vehicle (i.e., the fence was “maybe five feet” or “about five feet tall”: Transcript, August 2, 2016, p. 55).  Importantly, there is no independent, reliable and definitive evidence before the court of the actual height of the fence in question.  Thus, the testimony about the fence does not furnish evidence that the court can view, in turn, as an independent, reliable and definitive source of verification that the Suspect’s actual height was in the 5’ 6” to 5’ 8” range and not Mr. Heltman’s 6’ 3” height. 

[94]        In approaching counsel’s argument about height estimation in this way I have borne in mind the comments of D.M. Smith J. (as she then was) in R. v. Blackwell, 2007 BCSC 1240 (CanLII), [2007] B.C.J. No. 1826 at para. 133 (S.C.):

[95]        Undoubtedly, as was the case in Blackwell, at the time Cst. Moerike made his observations—particularly during the second encounter that began on Quince Street—tensions were running high, hearts were pounding and adrenalin was flowing.  What was unfolding then was the penultimate phase of a high-speed police chase of driver of a vehicle being operated by the Suspect in a way that put human lives at risk.  I do not find it surprising in the present case that, to track the language of Smith J. in Blackwell, those circumstances might have “impede[d]” Cst. Moerike in his efforts to make “an accurate estimate” of the Suspect’s height.

[96]        As I have previously mentioned, during cross-examination, counsel for Mr. Heltman also brought out the fact that Cst. Moerike’s notes did not contain any reference to the white emblem which he said, during his testimony, was visible on the hoodie the Suspect was wearing, both at the first encounter on Massey Drive and at the second encounter on Quince Street.  Much is made of this in defence counsel’s written submissions.  Here again, while I do not see the omission as being unimportant, neither does it attain, in my mind, the level of significance attributed to it by counsel for Mr. Heltman.

[97]        The officer candidly acknowledged the omission of a reference to the white emblem from his notes regarding the first, brief encounter with the Suspect (on Massey Drive), but he nevertheless held fast to his contention that he did recall seeing it as a feature of the Suspect’s hoodie then and during the second encounter beginning on Quince Street.  Significantly, the Transcript of August 2, 2016 at p. 90 also shows that he denied the suggestion that he fabricated or reconstructed his evidence in that regard:

[98]        Undoubtedly, the Crown’s case for identification would have been strengthened if the white emblem on the hoodie that Cst. Moerike testified he saw at both his first and second encounters with the Suspect had been mentioned in his officer’s notes for both encounters.  However, there is nothing in the evidence that persuades me of any dishonesty on the officer’s part, either in the preparation of his notes or in his testimony about them.  Neither does the white emblem constitute a “touchstone” element in the array of identification evidence that is now before me.  It is a not unimportant part of the picture, but it ranks far behind, for example, the facial recognition evidence that I have discussed in depth above. 

[99]        With regard to the proper approach to be taken where gaps are discerned in officers’ notes, I adopt the analysis and somewhat more forgiving approach found in R. v. Newsome, [2017] B.C.J. No. 55 at paras. 88-99 (S.C.), R. v. Naidu, [2015] B.C.J. No. 1248 at paras. 25-41 (Prov. Ct.), and the authorities discussed in those decisions.  Applying that approach, I do not consider that the state of Cst. Moerike’s notes is a factor having anything more than a minor, detrimental impact upon the identification evidence that the Crown adduced from him.  To put it slightly differently, Cst. Moerike gave credible testimony that he saw the white emblem on the Suspect’s hoodie on both the first and second encounters.  That is the officer’s evidence.  His notes—which comprise an aide memoire and are not evidence per se—were admittedly deficient in this particular but, having regard to all of Cst. Moerike’s testimony in this regard and his credibility overall, that omission from his notes has led me to subtract little from the weight I am prepared to ascribe to that testimony. 

[100]     Counsel for Mr. Heltman also pressed Cst. Moerike on the question of the tattoo that was visible on Mr. Heltman’s neck as he gave his evidence at trial.  The officer accepted that he had no recollection or note of having seen such a tattoo at the material time (although he could certainly see it when he and Mr. Heltman were in the courtroom at trial).  Cst. Moerike explained, however, that the positioning of the hood on the hoodie Mr. Heltman was wearing on the offence date would have shielded such a tattoo from view in any event: Transcript, August 2, 2016, pp. 90-91. 

[101]     Other testimony the officer gave was to the effect that the hood on the hoodie was up and covered the Suspect’s head “from the ears back” (Transcript, August 2, 2016, pp. 54 and 97). 

[102]     That other testimony does raise a question about whether—assuming the tattoo was in place on the offence date in 2015 as Mr. Heltman testified it was—such positioning of the hood would have wholly obscured it.  (Mr. McDonald’s evidence was to the effect that such a tattoo would have been difficult to see, in part because of the hoodie/sweatshirt garment the Suspect was wearing when he made his observations: Transcript, August 2, 2016, p. 26-27.)

[103]     Without demonstrative evidence involving Mr. Heltman putting on a hoodie and pulling up the hood so that it covered his head “from the ears back” to show what was, and was not, visible on his neck (and no such demonstrative evidence was led), it is not possible for me to say more than that a question lingers unanswered, on the point.

[104]     Had I believed Mr. Heltman’s alibi evidence, then that would have brought matters to a swift end.  If I were to have believed that Mr. Heltman was, as he claimed, elsewhere on the day and at the time the alleged offences were committed, then he could not have been the Suspect and he could not have committed the offences enumerated in Information No. 43980-1.  However, for the reasons I have given above, I have rejected Mr. Heltman’s alibi evidence that he was elsewhere and found that it does not raise a reasonable doubt.  It was therefore necessary that I proceed beyond the alibi to consider all of the evidence of identification discussed above to decide whether it was capable of persuading me, beyond a reasonable doubt, that Mr. Heltman and the Suspect are the same person.

[105]     As I have acknowledged several times before in these Reasons, the Crown’s case on identification of Mr. Heltman as the Suspect is not perfect.  But while the Crown’s onus is a high one—that is, proof beyond a reasonable doubt—it is not an onus that requires the calling of a case on the issue of identification by the Crown that is perfect.  Rather, I must look at the various, proven indicia of identity that make up the Crown’s case and then determine whether, in the aggregate, they achieve a critical mass and satisfy me, beyond a reasonable doubt, that Mr. Heltman and the Suspect are the same man.  As R.A. Clark J. put it in R. v. Webb, [2009] O.J. No. 6616 at para. 32 (Ont. H.C.J.), I must “weigh the individual pieces of evidence to decide what conclusions they support in the aggregate”. 

[106]     The exercise is not unlike that which a trial judge must undertake in determining whether a collection of observations made by a police officer while investigating a crime, when gathered together, add up to reasonable grounds for arrest.  The focus falls less on the individual elements and more on whether the totality of the evidence establishes identification to the requisite standard: see R. v. Huddle, 1989 ABCA 318 (CanLII), [1989] A.J. No. 1061 (C.A.). 

[107]     What are the elements that the Crown says, taken together, connect Mr. Heltman and the Suspect and support its contention that Mr. Heltman was the Suspect?  I summarise them below:

[108]     I have already commented that the Crown evidence is not perfect.  Not every element in the foregoing enumeration of connecting factors carries the same persuasive force.  For example, as I have noted, the dock identification is relatively weak evidence of identification.  The weight of the evidence regarding the observation of the white emblem on the black hoodie is lessened somewhat by reason of the fact that Cst. Moerike’s notes do not refer to it on both encounters.  The estimate that the officer gave of the Suspect’s height—which I have not included in the enumeration above but still considered—takes something away from the identification evidence as a whole, given that it points to a Suspect several inches shorter than Mr. Heltman.  However, I have also explained in this decision my reasons for treating most of the concerns that have been raised by defence counsel about the identification evidence in this case, including those noted above, as being of relatively low importance.

[109]     Counsel for Mr. Heltman rightly argues that, while there is evidence before the court that the Caravan and some of its contents (including the cell phone) were dusted for fingerprint analysis, the Crown has adduced no such forensic evidence as part of this prosecution.  I will not speculate about what that evidence might or might not have revealed.  I have not been asked to draw an adverse inference against the Crown with respect to fingerprint evidence; neither am I disposed to draw one unbidden.  I will simply say that I have worked with the evidence that has been adduced at trial in reaching my conclusions on identification.

[110]     Taking the various elements of the identification evidence that have been placed before the court and viewing them together, and having incorporated adjustments to the weight of the evidence for certain elements to reflect the considerations discussed in detail above in these Reasons, I have concluded that the Crown’s case for identification is a compelling one.  Taken together and discounting some individually for the reasons I have given, I find that the indicia of identification are sufficient to prove, beyond a reasonable doubt, that the Suspect who committed the offences that occurred during the hit-and-run collision and subsequent car chase that are enumerated in Information 43980-1 was the accused, Dustin Daniel Heltman.

[111]     Identification was the only real issue in controversy in this case and, as I have stated above, I am satisfied beyond a reasonable doubt by the evidence that I do believe that the Crown has proven that it was Mr. Heltman who engaged in the conduct that is the subject of the various charges set out in Information 43980-1: R. v. W.D.

[112]     Further, with one exception, I am satisfied that the evidence led at trial by the Crown proves all of the essential elements of all of the offences alleged in the subject Information.  I have not considered it necessary for me to undertake in these Reasons a detailed, count-by-count outline of that evidence.  The controversy in this case, as it was tried and then argued, was about identification.

[113]     The exception I have mentioned concerns count 3, under which it is alleged that Mr. Heltman “did commit mischief by wilfully damaging property, to wit: the utility trailer and Toyota Tacoma vehicle, the property of Geoffrey McDonald, the value of which does not exceed five thousand dollars ($5,000), contrary to Section 430(1)(a) of the Criminal Code.”  In a word, I am not satisfied that, on count 3, the Crown has proven mens rea on Mr. Heltman’s part beyond a reasonable doubt. 

[114]     I am certainly satisfied that Mr. Heltman struck Mr. McDonald’s utility trailer from behind with the Caravan he was driving, causing the trailer and the truck towing it to incur the damage Mr. McDonald described in his testimony at trial.  I am equally satisfied by the evidence that he drove the Caravan negligently when he did so.  But, although the point was not taken in argument on Mr. Heltman’s behalf, I do not consider that I have evidence before me that establishes to the criminal standard that, in colliding with Mr. McDonald’s utility trailer, Mr. Heltman did more than drive negligently. 

[115]     The mens rea required for a conviction of mischief requires something more, namely, recklessness, and in a criminal prosecution, to meet that requirement, the Crown must lead evidence that the accused, in committing the actus reus, evinced "more than a mere error of judgment, but rather a very significant departure from the standard of a reasonable person; in other words, complete indifference as to the consequences": see R. v. Connors, (1996), 1996 CanLII 11088 (NL CA), 146 Nfld. & P.E.I.R. 246 at p. 247 (in that case, in the context of arson).  As McIntyre J. (for the court) expressed the point in R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at para. 16:

[116]     There not being evidence before me upon which I can conclude that Mr. Heltman’s mental state at the time he collided with Mr. McDonald’s utility trailer fulfilled the aforementioned mens rea requirement of criminal recklessness, I find him not guilty on count 3.

[117]     To summarise then, I find Mr. Heltman guilty of counts 1, 2, 4, 5 and 6, and not guilty on count 3, of Information 43980-1.

[118]     Orders accordingly.