R. v. Savidant, 2018 BCPC 110 (CanLII)
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2018 BCPC 110 |
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Date: |
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File No: |
37711-1 |
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Registry: |
Port Alberni |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
JESSIE ANDREW SAVIDANT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
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N. Bennet and C. Cromlish |
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Counsel for the Defendant: |
P. Hertzberg |
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Port Alberni, B.C. |
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Dates of Hearing: |
May 25, June 29, September 12, November 27, 2017, March 9, 2018 |
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Date of Judgment: |
April 18, 2018 |
A Corrigendum was released by the Court on May 9, 2018. The corrections have been made to the text and the Corrigendum is appended to this document.
The Allegations
[1] Mr. Savidant is charged with theft of a truck and trailer, possession of stolen property, dangerous driving, failing to stop the truck when directed so do by a peace officer, possession of break-in instruments and possession of methamphetamine. Mr. Savidant admits that the evidence establishes his guilt on the counts of possession of break-in instruments and methamphetamine. He says that it is insufficient to establish his guilt on the remaining counts.
Facts Not In Dispute
[2] Mr. Wayne Earthy lives in a house on the Alberni Canal. Access to his home is by boat only. It is his practice to park his truck and trailer at a marina in Port Alberni, British Columbia and to commute by boat to his home. He did so sometime in the week of January 22, 2017.
[3] At 1:04 a.m. on Saturday, January 28, Constable Johns of the RCMP was on patrol in Port Alberni. He observed Mr. Earthy’s truck and trailer in motion on River Road. The lights of the truck were working, but the tail lights of the trailer were not. The truck signalled a turn onto Yew Street, but the tail lights of the trailer again failed to function. Constable Johns activated his emergency lights and tapped his siren to initiate a traffic stop. The truck turned onto Russell Street and accelerated quickly. As it turned, the trailer skidded to one side, narrowly missing a parked vehicle. Constable Johns discontinued the pursuit. Less than 10 minutes later, he found the truck and trailer a few blocks away. No one was visible in or near the truck. The driver’s door was open and the engine was running. He approached no closer than 30 feet from the truck, so as to avoid interference with any scent which might be on the ground. At 1:15 a.m., he radioed to his dispatcher to send a police dog to the scene. Constable Bartlett and police dog Forest arrived on-scene at 1:27 a.m.
[4] Constable Bartlett is a qualified and experienced dog handler. Forest is a qualified and experienced tracking dog. They have worked together since 2015.
[5] On the morning in question, the ambient temperature was about 5 degrees celsius and the ground was damp. There was no wind and it was not raining. Those are ideal conditions for dog-tracking.
[6] Constable Bartlett and Forest approached the truck immediately behind the driver’s door. Forest exhibited an interest in the area near the driver’s door, but Constable Bartlett pulled him away. They circled the truck counter-clockwise. Forest gave no indication that he detected any scent until they reached the left front corner of the vehicle. He then led Constable Bartlett to the driver’s door and along a track from there into the woods. Constable Bartlett interpreted Forest’s behaviour to indicate that Forest detected the scent of one person only. About 100 metres into the woods Forest stopped. His ears and hackles stood up, indicating the presence of some danger. Constable Bartlett shone his flashlight into the woods and saw Mr. Savidant standing on the track which Forest was following. Mr. Savidant was soaking wet and shivering. Constable Bartlett told Mr. Savidant that he was under arrest. Forest’s behaviour indicated to Constable Bartlett that Forest wanted to continue the search, so Constable Bartlett released Forest from his harness, leaving him free to proceed as he chose. Forest ran down the track to the river and plunged in. He was unable to get out of the water unassisted, so Constable Bartlett and other officers pulled him out. Forest held a soaking wet sweater in his jaws. After they pulled him from the water, Constable Bartlett and Forest made a circle in the area in an attempt to determine whether any other tracks of the same scent could be found. They found none. The police found no one else in the area.
[7] During a search incidental to arrest, the police found on Mr. Savidant’s person, a small quantity of methamphetamine and some lock picks, suitable for picking vehicle locks. On the passenger’s seat of the truck, the police found a screwdriver and pliers. The ignition lock of the truck had been punched out, so as to allow the truck to be started without a key. No fingerprints were found in the truck or on the pliers or screwdriver.
Defence Evidence
[8] Mr. Savidant gave evidence. The following is a summary of his evidence.
[9] On January 27, 2017, he purchased a used motor vehicle. Because he had no driver’s license, he asked his friend, Mr. Benedetti, to drive him to the local casino, where they passed a few hours in recreation. They then went to a friend’s house to work on the vehicle.
[10] Mr. Savidant then received a telephone call from a friend, whom he did not name, who is a drug dealer. The friend asked Mr. Savidant to deliver some methamphetamine, valued at about $40, to a customer of hers, on the understanding that she would reimburse Mr. Savidant later. He agreed. She asked him to meet the customer at a gas station near the marina where Mr. Earthy’s truck and trailer were parked. Mr. Benedetti dropped Mr. Savidant off near the gas station, where Mr. Savidant made the delivery. As Mr. Savidant was walking back to meet Mr. Benedetti, he saw police emergency lights nearby. He did not want to encounter the police because he was carrying drugs. He ran into the woods toward the river. When he reached the river, he was unable to stop and fell down the bank and into the river. He climbed out of the river and walked back up the trail, where he encountered Constable Bartlett and was arrested by him.
[11] He explains that he had the lock picks because he “… used to steal stuff …” and lock picking is now “… sort of a hobby …” for him.
[12] Mr. Benedetti corroborates Mr. Savidant’s evidence of events up to the point where Mr. Savidant left the vehicle to walk to the gas station. Mr. Savidant did not return as expected from the gas station. Mr. Benedetti drove around the neighbourhood to look for Mr. Savidant, and then gave up and went home.
Possession of Methamphetamine and Break-in Tools
[13] Mr. Savidant acknowledges his guilt in relation to possession of methamphetamine and break & enter tools. I need say no more about those offences.
Dangerous Driving
[14] The only evidence in support of the charge of dangerous driving is the following passage from the evidence in-chief of Constable Johns:
I followed the vehicle down the road, continuing west on River Road, and at approximately Yew Street, I activated my emergency equipment, being my lights, and I gave one quick tap of my emergency siren. The driver of the vehicle turned left onto Russell Street, he turned and accelerated quickly, causing the trailer to skid around the corner, and almost strike a parked vehicle.
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… I radioed to my watch commander, Corporal Jenkins, and advised him that there was a vehicle that was not stopping. My watch commander instructed me, as per policy, to stop any pursuit and stop the vehicle. As I had turned onto Russell Street, I turned off my emergency equipment, and stopped my vehicle completely. From that position, I watched the vehicle, the Ford pickup and trailer, continue and turn onto Westporte Boulevard, it continued again where the trailer bounced and skipped as it turned the corner.
[15] This is not a case like R. v. Roadhouse 2015 SKPC 36; [2015] SJ No. 113; 78 MVR (6th) 274, in which the conduct of the accused driver put at risk the safety of the pursuing police officer. There is no evidence that any other member of the public was in the area, or that anyone was endangered by the manner in which the truck and trailer were operated on the night in question. That being so, Mr. Savidant could not be convicted of dangerous driving even if it were proven that he was the driver.
The Other Charges
[16] The prosecution case in relation to the remaining counts depends on the proposition that Mr. Savidant stole the truck and trailer, and was driving the truck when Constable Johns activated his emergency lights and siren. The evidence in support of that proposition is entirely circumstantial. No witness saw Mr. Savidant driving the truck. The prosecution case depends critically on the following subordinate propositions:
1 Constable Bartlett correctly interpreted Forest’s behaviour as a non-verbal communication of Forest’s opinion that one, and only one, person made the track from the truck to the place where Mr. Savidant was arrested.
2 In forming that opinion, Forest correctly interpreted the scent which he followed.
3 It is not reasonably possible that: (i) another person stole the truck, ran from the truck to the river, and swam or ran away; and (ii) Mr. Savidant later fell into the river, climbed out and walked up the same path to the point where he was found by Constable Bartlett.
[17] If the matter were free from authority, I would harbour a doubt (which I would consider to be reasonable) about propositions #1 and #2. Verbal communications between humans are fraught with uncertainty and misunderstanding. Communications by one species to another by the use of non-verbal signals are more so. Like humans, dogs are capable of error. Unlike humans, dogs cannot be cross-examined.
[18] However, Ms. Cromlish drew to my attention the following authorities which may lead to the conclusion that I am not at liberty to give effect to my doubts about the reliability of dog-search evidence generally.
[19] In R. v. Mattice 2002 BCCA 683; [2002] BCJ No. 2799, Justice Rowles said that dog-tracking evidence is “… strong circumstantial evidence, and any other rational conclusion must have some evidentiary base ...” (underlining added). She referred to two previous judgements of the British Columbia Court of Appeal: R. v. Dilman [1979] BCJ No. 1794; 1979 CanLII 4429 (BC CA), 7 CR (3d) 378 and R. v. Jenkins [1987] BCJ No. 1341. In Dilman, Justice Craig said that “… that there must be some evidentiary base for another rational conclusion -- you cannot found another rational conclusion on possibilities”. I observe that, in each of Dilman, Jenkins and Mattice, the Court of Appeal upheld a conviction by the trial judge, with the consequence that the quoted comments were obiter dicta.
[20] In R. v. Sherman [1997] BCJ 2472; 1997 CanLII 26254 (BC SC), 13 CR (5th) 173, Justice Romilly said that dog-tracking evidence is “… circumstantial evidence which is admissible if the foundation for the evidence is properly made out …”, and set out in some detail the requisite evidentiary foundation. In this case, Mr. Bennet meticulously led Constable Bartlett through the necessary foundation evidence as described by Justice Romilly.
[21] In Hewlin v. The Queen 1999 NSCA 54 (CanLII), [1999] NSJ No. 70; 174 NSR (2d) 93, the Nova Scotia Court of Appeal held that the trial judge was correct in accepting tracking dog evidence, and described the contrary opinion of the Summary Conviction Appeal Judge as “pure conjecture”.
[22] If the matter rested there, I would be obliged to put aside my doubts about the reliability of dog-tracking evidence and accept subordinate propositions #1 and #2. However, the recent decision of the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33 (CanLII), [2016] 1 SCR 1000 leads to a different conclusion. Justice Cromwell gave judgment for the court. He said that, in order to convict Mr. Savidant, I “… 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 …”. At paragraphs 35 - 38, Justice Cromwell said (citations omitted, underlining in the original, bold italics added):
At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts” …. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts …. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence"…. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt …. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused" …." Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
I am unable to reconcile Justice Cromwell’s statement of the governing principles with the authorities on which Ms. Cromlish relies. In that circumstance, I am obliged to apply the law as stated by Justice Cromwell.
[23] Viewed logically and in light of human experience, the possibility that Constable Bartlett misinterpreted the message which Forest intended to communicate to him, when coupled with the possibility that Forest misinterpreted the scent which he was following, gives rise in my mind to a doubt that Mr. Savidant made the track from the truck to the place where he was arrested.
[24] I do not mean to say that dog-tracking evidence is so inherently unreliable that it should not be received. I accept that, when supported by other circumstantial evidence, it may, in some cases, assist in discharging the Crown’s onus of proof. In this case, it is necessary to weigh the circumstantial evidence tendered by the Crown against the testimony of Mr. Savidant and Mr. Benedetti. In so doing, I am mindful of the inherent frailties of dog-tracking evidence.
[25] The “evidence” given by Forest to Constable Bartlett, and reported by Constable Bartlett to the Court, is opinion evidence. In the opinion of Forest, as communicated non-verbally by Forest to Constable Bartlett, one, and only one, person created the scent trail followed by Forest from the truck to the place where Mr. Savidant was arrested. Many successful cross-examinations of experts are founded on questions in the form of: “Would your opinion be different, and, if so, in what way, if you were told that …?” Because Forest cannot be cross-examined, no opportunity for that sort of cross-examination exists in the case of dog-search evidence.
[26] The present issue calls to mind the observations of Justice Charron in R. v. Khelawon 2006 SCC 57 (CanLII), [2006] 2 SCR 787 @ paragraph 2:
As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts.
[27] A further source of doubt, independent of the inherent frailties of dog-search evidence, arises in this case from subordinate proposition #3. There is nothing in the evidence to suggest that Forest would have behaved differently if:
1. Someone else made the track from the truck to the point where Mr. Savidant was arrested and on from that point to the river, where that person fell in.
2. Mr. Savidant fell into the river somewhere else, climbed out at the point where the first person fell in, and walked up the track to the place where he was arrested.
In that circumstance, Forest would have followed the track to where Mr. Savidant was, alerted Constable Bartlett to Mr. Savidant’s presence, and then followed the first person’s track to the river. Constable Bartlett said that such a hypothesis is excluded by the fact that Forest found no track leading away from the point where Forest jumped into the river. He says that, even if another person had fallen in and swum away, Forest would have detected his scent because the scent would hang in the air for approximately 12 minutes after the person’s departure. I am unpersuaded by that observation because Constable Johns arrived at the truck at 1:15. The thief was nowhere to be seen, and had clearly left some minutes earlier. Constable Bartlett and Forest arrived at the truck 12 minutes later, at 1:27. It must have taken them some time to locate the scent, follow it to Mr. Savidant and arrest Mr. Savidant before Forest pressed on down to the riverbank. By that time, on the evidence of Constable Bartlett, the scent of the hypothetical swimmer would have dissipated.
[28] There are many reasons to doubt the evidence of Mr. Savidant and Mr. Benedetti. If I were to decide this case on a balance of probabilities, I would disbelieve them and conclude that Mr. Savidant stole the truck and trailer. However, when I consider my own psyche as a question of objective fact, I am in doubt on that question. I consider my doubt to be rational. I am therefore obliged to acquit Mr. Savidant of that theft.
Disposition
[29] I convict Mr. Savidant of possession of methamphetamine and break-in tools, and acquit him of the remaining charges.
April 18, 2018
_____________________________
T. Gouge, PCJ
CORRIGENDUM - Released May 9, 2018
In the Reasons for Judgment dated April 18, 2018, the following change has been made:
[1] The last paragraph in this decision under the heading “Disposition” be numbered to indicate paragraph number 29 and set out as follows:
[29] I convict Mr. Savidant of possession of methamphetamine and break-in tools, and acquit him of the remaining charges.