IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On May 7, 2018, Corporal Windover attempted to pull over a stolen motorcycle operated by Mr. Schendel.  It is alleged that Mr. Schendel failed to stop for Corporal Windover thus causing a short pursuit which resulted in Mr. Schendel being stopped and arrested.

[2]           The above events culminated in Mr. Schendel being charged with failing to stop while being pursued by a police officer, dangerous driving and possession of stolen property; the motorcycle.

[3]           A trial was held and the Crown called several witnesses.  Mr. Schendel testified in his defense and he denied knowing that the motorcycle was stolen, he also denied trying to evade the police and driving dangerously.

[4]           This Court must determine if the evidences proves Mr. Schendel’s guilt beyond a reasonable doubt. 

[5]           On January 18, 2018, Mr. Shnurr’s red and white Triumph motorcycle was stolen.  According to Mr. Shnurr, he purchased the motorcycle from the United States via the internet.  When he received the motorcycle he looked at the VIN but he could not recall when he did this.

[6]           In June of 2018, Mr. Shnurr received a letter from Mundies Towing indicating that his motorcycle was in their impound lot.  Mr. Shnurr went to Mundies and retrieved it.  When Mr. Schnurr retrieved his motorcycle he noticed that the VIN had been removed and that the ignition was damaged.  Despite this damage, Mr. Schnurr confirmed that the ignition was operable.  He also confirmed in his evidence that the ignition had not been damaged prior to the theft.

[7]           As for the location of the removed VIN, Mr. Shnurr referred the court to the photographs in Exhibit 2 and he pointed to a location on the right side of the frame beneath the headlight.

[8]           Finally, Mr. Schnurr testified he did not know Mr. Schendel and that he did not give Mr. Schendel or anyone permission to use his motorcycle.

[9]           On May 7, 2018, Corporal Windover was operating a marked police unit and wearing a full police uniform.  At approximately 7:00 am, he was driving on 18^th Avenue when he saw an older model Triumph motorcycle parked at the side of the road.  Standing beside the motorcycle was a male later identified as Mr. Schendel. 

[10]        Corporal Windover drove past the motorcycle and as he did so he noted the licence plate as S75653.  Corporal Windover then queried the licence plate on his computer and the response caused Corporal Windover to believe that the licence plate did not belong on the motorcycle and that the motorcycle was uninsured.

[11]        Wanting to speak with the male at the motorcycle, Corporal Windover drove around the block and as he approached the intersection of 18^th Avenue and 7^th Street he saw the same motorcycle travelling on 18^th Avenue.  The motorcycle travelled from Corporal Windover’s right to his left and as it proceeded through the intersection, Corporal Windover noticed that the rider turned and looked at him at which point they made eye contact.  On cross-examination, Corporal Windover corrected his evidence in that, rather than eye contact being made the driver turned and looked in his direction.

[12]        Once the motorcycle passed the front of Corporal Windover’s vehicle Corporal Windover turned in behind it and as he did so he activated his emergency lights.  Corporal Windover noticed that the motorcycle was not pulling over or stopping so he activated his siren and accelerated to place his police vehicle within two car lengths of the motorcycle.

[13]        Corporal Windover continued following the motorcycle and when it reached the intersection of Canada Way and 18^th Avenue the motorcycle made a right turn onto Canada Way without stopping for the stop sign and without signalling.  Just as the motorcycle was turning Corporal Windover noticed the rider look over his shoulder and in the direction of Corporal Windover.

[14]        Canada Way at 18th Avenue is 2 lanes in each direction and at the time the traffic was moderately heavy as the morning rush was just starting.

[15]        The motorcycle continued on Canada Way toward Edmonds and as it approached Edmonds the motorcycle moved around slower vehicles by switching from one lane to the next.  Corporal Windover testified that the motorcycle made a total of two lane changes. 

[16]        As the motorcycle neared Edmonds the traffic became more congested with two lanes of stopped cars waiting for the red light.  Rather than stopping behind the line of cars, the motorcycle rider maneuvered between the two lanes of stopped cars and turned right at Edmonds.  This was done without signalling and without stopping for the red light.  As the motorcycle made this turn Corporal Windover noticed the rider look back at him over his left shoulder.

[17]        For safety reasons Corporal Windover was unable to follow the motorcycle so he drove his police vehicle into the intersection of Canada Way and Edmonds and looked to his right along Edmonds.  At this stage Corporal Windover noticed a car that was in the process of turning onto Edmonds.  According to Corporal Windover this vehicle avoided colliding with the motorcycle by swerving and braking.

[18]        Corporal Windover watched as the motorcycle then turned left travelling across six lanes of traffic into the gas station lot.  Corporal Windover described the actions of the motorcycle as creating chaos in that vehicles had to swerve and come to a stop.  The motorcycle continued north through the gas station lot towards the rear exit.  Corporal Windover shut off his emergency equipment and he continued north on Canada Way and onto Wedgewood Avenue which is an exit point for the rear of the gas station.

[19]        On entering the exit area Corporal Windover saw the motorcycle coming toward him.  Corporal Windover attempted to block the motorcycle by angling his police vehicle and stopping.  At this stage his emergency lights were activated.  Corporal Windover exited his police car and yelled for the motorcycle to stop.  Mr. Schendel ignored Corporal Windover’s command and swerved around to the passenger’s side of the police car and mounted a sidewalk and attempted to manoeuvre between a post and an adjacent building.  At this stage Mr. Schendel lost control of the motorcycle and he fell over.  On seeing this Corporal Windover went around the rear of his police vehicle and to the passenger side where he arrested Mr. Schendel who was now on his feet. 

[20]        Corporal Windover then identified Mr. Schendel and he searched him.  In Mr. Schendel’s front pocket was a multi-tool that had an implement similar to a screw driver.  This implement was open and extended. 

[21]        Once Mr. Schendel was secured Corporal Windover picked up the motorcycle and placed it onto the kickstand.  In dealing with the motorcycle Corporal Windover noted that the VIN number located on the front frame under the headlight had been removed by grinding or scratching.  He also noticed that the ignition was damaged.  Corporal Windover took the multi-tool that he found in Mr. Schendel’s pocket and inserted into the ignition and confirmed he could turn the ignition off and on with it.

[22]        As for the licence plate that was on the motorcycle, Corporal Windover conducted some computer queries and he discovered that the licence plate belonged on a Yamaha and that the plate expired in 2014.  He also discovered that the validation tag had been reported stolen. 

[23]        As for the area and the traffic where the above occurred, Corporal Windover testified that 18^th Avenue was residential and that there was no traffic when he pursued the motorcycle towards Canada Way.  As for the area along Canada Way and towards Edmonds, Corporal Windover testified that there was a school on the left and some residential housing on the right.  At Canada Way and Edmonds there were retail businesses on three of the corners.  The businesses were open at the time and the intersection of Canada Way and Edmonds was congested.  Along Edmonds just past Canada Way were retail businesses with a bus stop on the right hand side.

[24]        Corporal Windover measured the distance travelled by the motorcycle as being, 0.7 of a kilometre.  He also indicated that there were several places where the motorcycle could have stopped should he have been so inclined.

[25]        During cross-examination Corporal Windover was taken to his police statement and questioned about an inconsistency between his statement and his testimony.  Specifically, Corporal Windover confirmed that his report stated he was on Canada Way when he activated his emergency lights and siren.  Corporal Windover could not explain why his statement read as it did, however, he maintained that he activated his emergency equipment on 18^th as it was his intention to pull the motorcycle over and that was his reason for initially going around the block.

[26]        Corporal Windover confirmed that his police report made no mention of their being eye contact between himself and Mr. Schendel.

[27]        Corporal Windover was also questioned about whether or not Mr. Schendel was wearing goggles when he was operating the motorcycle.  Corporal Windover could not recall if Mr. Schendel was wearing goggles.

[28]        Finally, Corporal Windover confirmed he made an error in recording the licence plate number of the motorcycle in his report and that he also misidentified the Husky gas station.

[29]        On May 7, 2018, Constable Jude was dispatched to assist Corporal Windover with Mr. Schendel.  When Constable Jude arrived he was tasked with transporting Mr. Schendel.  To this end, Constable Jude searched Mr. Schendel, placed him in his police vehicle, and confirmed his identification.  Constable Jude then transported Mr. Schendel to the Burnaby detachment.

[30]        At the Burnaby detachment Constable Jude conducted a secondary search of Mr. Schendel and he located a folded knife that was on a key ring with a U-Haul key attached.  Constable Jude seized the knife, the key ring and the U-Haul key and he gave them to Constable Abraham.  Constable Jude identified photograph 17 in Exhibit 2 as the items he seized.

[31]        On May 7, 2018, Constable Abraham also attended to help Corporal Windover with Mr. Schendel.  When Constable Abraham arrived he noticed a motorcycle and Corporal Windover with a male in custody.

[32]        On the rear seat of the motorcycle was a large bag containing a smaller bag.  Constable Abraham was tasked with seizing these items, conducting an inventory, and taking photographs.  As such Constable Abraham searched the large bag and inside he found a smaller bag.  Within these bags Constable Abraham found a number of keys, tools, and paper work.  Constable Abraham does not recall what the paper work was but he believes it was a transfer document.  He does recall that some of the papers related to a car and they had Mr. Schendel’s name on them.  All items within the bags, but for the paperwork, were photographed.  Lastly, none of the keys recovered were Triumph keys.  These items were photographed on the ground: Exhibit 2, photographs, 10, 11, 12, 13, and 14.

[33]        Constable Abraham also located on the ground a helmet, gloves, goggles and a multi-tool.  All of these were photographed and seized.  Lastly, Constable Abraham photographed the motorcycle including the location where it appeared that the VIN had been removed.

[34]        Constable Abraham also seized the licence plate that was on the rear of the motorcycle.  The plate was S75653 and attached to the plate was a validation sticker indicating that the insurance expired on March 2, 2019.  Constable Abraham next took pictures of the motorcycle and when he was finished he watched as it was loaded onto Mundies tow truck #169.

[35]        On May 7, 2018, Mr. Schendel was riding his bicycle to his friend Bruce’s home.  Mr. Schendel was heading there for the purpose of fixing the starter on his truck which was parked in front of Bruce’s and just down the road.

[36]        While heading to Bruce’s Mr. Schendel became aware of a text from Ed.  Ed was the ex-boyfriend of Mr. Schendel’s girlfriend, Summer.  According to Mr. Schendel he had met Ed on a few occasions and as far as Mr. Schendel was concerned, Ed knew that Mr. Schendel was adept at fixing motorcycles.

[37]        As indicated Mr. Schendel had received a text from Ed.  The text was asking if Mr. Schendel would fix Ed’s motorcycle.  According to Mr. Schendel’s evidence, Ed informed him that he could not get it “started or something”.  Ed explained that the motorcycle was in the back of Bruce’s place and the ignition key was under the seat strap.  Mr. Schendel agreed to fix the motorcycle and he went to the rear of Bruce’s home.

[38]        Mr. Schendel located the motorcycle and he removed the key from the seat.  He then placed the key in the ignition and turned it.  Typically when this is done the dash panel will illuminate however on this occasion it did not do so, hence, Mr. Schendel believed the motorcycle had an electrical problem. 

[39]        In an effort to fix the motorcycle, Mr. Schendel removed the seat and he applied a multi-meter to the battery and the results informed him that the battery was fully charged.  Mr. Schendel next checked the fuses and he discovered that two fuse were blown.  He replaced the fuses and he discovered that the seat was shorting out the electrical thus causing the fuses to blow.  Mr. Schendel fixed the seat and then he tried the ignition.  The ignition responded appropriately, thus signaling to Mr. Schendel that he had fixed the motorcycle.

[40]        At no time did Mr. Schendel notice that the VIN was removed, nor, did he notice that the ignition was damaged.  At all times he believed that Ed owned the motorcycle.

[41]        Having fixed the motorcycle Mr. Schendel went out to his truck in order to prepare it for the loading of the motorcycle.  When Mr. Schendel got to his truck he noticed that all 4 tires were slashed.  According to Mr. Schendel he was angry and not thinking.  He therefore went back to Bruce’s and borrowed a licence plate so he could deliver it to Ed.  As for the insurance validation tags, Bruce removed it from this trailer and placed it on the expired plate.

[42]        According to Mr. Schendel he noticed that the motorcycle did not have a licence plate and from Mr. Schendel’s perspective this was not a big issue as he frequently worked on motorcycles that did not have licence plates.

[43]        Mr. Schendel then borrowed a motorcycle helmet, goggles and gloves from Bruce.  Mr. Schendel also placed the single ignition key onto his ring of keys.  Mr. Schendel’s explanation for this was that he did not want to lose the ignition key.  Mr. Schendel then set off travelling on 18^th Avenue towards Canada Way.  At Canada Way Mr. Schendel stopped at the stop sign, activated his right turn signal and turned right when it was safe to do so.  Mr. Schendel stayed in the curb lane and slowed for traffic that was waiting for a red light at Edmonds.  When the light turned green the cars in front of Mr. Schendel turned right onto Edmonds and Mr. Schendel proceeded straight through the intersection of Canada Way and Edmonds.

[44]        When Mr. Schendel was three quarters of the way through the intersection he heard a siren so he checked his mirror and he noticed a police vehicle behind him with the lights and siren activated.  Thinking that the police might be stopping him Mr. Schendel signaled and pulled into the second driveway on his right.  This driveway entered into a parking lot that was between the Husky gas station and a convenience store.

[45]        Once in the parking lot Mr. Schendel did not immediately stop, rather, he drove to the end of the building.  His explanation for not immediately stopping was that the lot was full and there was no place to stop.  Mr. Schendel stopped at the end of the building and put down his kickstand.  It was at this point that a police car pulled up and stopped in front of him.  The officer then exited his car and signaled for Mr. Schendel to get off of the motorcycle.  As such, Mr. Schendel got off of the motorcycle to the left side.  In doing so he neglected to place the transmission into neutral.  Once off of the motorcycle Mr. Schendel released the clutch and as he did this the motorcycle lurched forward and fell to the ground.  When the motorcycle fell the key came out of the ignition and landed on the ground.  Mr. Schendel pointed to Exhibit 2, photograph 13, and identified a key within the group as the one that had been in ignition.

[46]        Mr. Schendel confirmed that he has a criminal record that commences in 1990 and ends in 2018.  Noteworthy, is his record contains approximately 25 convictions for honesty matters and in this regard I am referencing: thefts, possession of stolen property, break and entries, convictions for false pretences, fraud and public mischief.  There are several other entries that I have not referenced.

[47]        During cross-examination Mr. Schendel provided a variation of his earlier testimony on the issue of the arrangements related to delivering the motorcycle to Ed.  In this regard, Mr. Schendel, in contrast to his evidence in court, testified that when the motorcycle was fixed he texted Ed and advised him that he could come and get it and it was at this point that Ed advised Mr. Schendel that he had no way of getting the motorcycle and he asked Mr. Schendel to deliver it with his truck.  Mr. Schendel then informed Ed that the truck was not running and Ed then asked Mr. Schendel to ride it to his house.  Mr. Schendel then thought about it for five minutes and he decided to ride the motorcycle to Ed’s place.  The reason for the delay in thought was that Mr. Schendel was a prohibited driver.

[48]        Mr. Schendel’s evidence also changed when the Crown questioned him about the sequence of events in the parking lot.  Specifically, during cross-examination Mr. Schendel testified that he was already off of the motorcycle when the police officer pulled in and stopped.

[49]        The Crown argues that Mr. Schendel’s evidence should be rejected.  Specifically, the Crown bases their position on the fact that Mr. Schendel’s testimony contained inconsistencies, that it did not make sense, that he was evasive, and finally that he is not trustworthy as evidenced by his criminal record.

[50]        As for the Crown’s case, the Crown argues it proves Mr. Schendel’s guilt beyond a reasonable doubt.  In this regard, the Crown argues Corporal Windover’s evidence was clear, consistent and cogent and it is from his evidence that the elements of dangerous driving and failing to stop while being pursued by a police officer have been established beyond a reasonable doubt.  The Crown relies on, R. v. Beatty, 2008 SCC 5, R. v. Roy, 2012 SCC 26.

[51]        As for the allegation of possessing stolen property, the Crown argues the lack of a licence plate, the lack of keys, the removed VIN and all of the circumstances support a finding that Mr. Schendel actually knew the motorcycle was stolen or that he wilfully blinded himself to this fact.  The Crown relies on: R. v. Chung, 2015 BCCA 62.  

[52]        Counsel for Mr. Schendel urges the Court to accept Mr. Schendel’s evidence and acquit him of the charges.  In support counsel points out that Mr. Schendel’s evidence was consistent and that he withstood a vigorous and detailed cross-examination.  Finally, counsel underscores the presumption of innocence and argues it prevails notwithstanding Mr. Schendel’s criminal record.

[53]        If the Court rejects Mr. Schendel’s evidence, and it does not leave the Court in a reasonable doubt, counsel then argues that Corporal Windover’s evidence was inconsistent and unreliable such that his evidence cannot be trusted to sustain a conviction.

[54]        Finally, counsel argues, even if Corporal Windover’s evidence is accepted, the speed, the short distance, and the overall manner of driving do not support a conviction for dangerous driving.

[55]        To rebut the presumption of innocence, the Crown must prove guilt beyond a reasonable doubt.  The standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence and the two concepts must be presented together as a single unit.

[56]        Guidance on the issue of reasonable doubt is as follows:

[57]        Mr. Schendel testified wherein he denied evading the police and driving dangerously.  He also denied knowing that the motorcycle was stolen.  In light of these denials, I instruct myself on the analysis found in R. v. W. (D.), [1991] 2 S.C.R. 742.

[58]        Hence, if I believe Mr. Schendel I must acquit him.  If I do not believe Mr. Schendel’s testimony but I am left in a reasonable doubt by it I must acquit him.  Even if I am not left in a doubt by Mr. Schendel’s evidence I must ask myself whether on the basis of the evidence that I accept I am convinced beyond a reasonable doubt by the evidence of Mr. Schendel’s guilt. 

[59]        I have carefully considered Mr. Schendel’s evidence and I do not believe him, nor, does his testimony leave me in a reasonable doubt.  My reasoning for rejecting Mr. Schendel’s evidence is based on, the combination of inconsistencies, his evasiveness, further his evidence does not accord with common sense, and to a very slight degree his history of dishonesty as disclosed in his criminal record.

[60]        The significant inconsistencies are as follows:

[61]        As for evasiveness, Mr. Schendel was reluctant to confirm that he had testified about all texts between himself and Ed.

[62]        With respect to portions of his evidence that did not make sense; common sense dictates that Mr. Schendel would have asked Ed for more information regarding the circumstances leading to the motorcycle breaking down.  It is common sense that asking such questions would have made the task of diagnosing the problem easier.  According to Mr. Schendel’s evidence he did not ask any questions related to the break down.

[63]        Mr. Schendel’s explanation for riding to the end of the parking lot and stopping did not make sense.  In this regard, he testified he pulled into the lot because he thought he was being pulled over.  Yet, on his evidence the police vehicle drove past the entrance to the lot thus any concern that he was being pulled over would have immediately dissipated, hence there was no need to drive to the end of the lot and stop.

[64]        Mr. Schendel testified that he put the ignition key on a ring with other keys so he would not lose the key.  In the circumstances of simply repairing the motorcycle (which took 30 minutes) and delivering it to Ed, Mr. Schendel’s explanation did not make sense and it conflicts with other evidence in that the key ring referenced by Mr. Schendel was found in the bag by Constable Abraham.

[65]        Mr. Schendel’s explanation for how the motorcycle lurched forward does not make sense.  Specifically, it makes no sense that he would continue to hold the clutch in despite being stopped and being off of the motorcycle.  I appreciate that Mr. Schendel may have been nervous, however, he was a very experienced motorcyclist.

[66]        Finally, it makes no sense that Mr. Schendel, an experienced motorcycle repair person, would fail to notice that the ignition was damaged.  This is significant given he actioned the ignition several times and given that the officers, who were not repairing the motorcycle or working the ignition noticed the damage.

[67]        Finally, I observe that Mr. Schendel’s criminal record is lengthy and contains several entries involving offences of dishonesty.  In making this observation I am careful to consider his record on the issue of his credibility and not for the purpose of reasoning that it was more likely than not that he committed the offences alleged.  I also acknowledge that persons with lengthy criminal records with honesty related convictions can and do tell the truth. 

[68]        For the above reasons, I reject those portions of Mr. Schendel’s evidence that is not supported by other evidence.  As such, I accept that Mr. Schendel was wearing the helmet, goggles and gloves that were found at the scene, I also accept that there is a possibility that he did not notice that the VIN had been removed, and I accept that he placed the licence plate on the motorcycle.  I reject Mr. Schendel’s claim that one of the keys that were photographed had fallen out of the ignition and I reject his evidence regarding Ed.

[69]        I now turn to the evidence of Corporal Windover.  After carefully considering his evidence, I conclude the inconsistencies and errors noted are such that it would be unsafe to rely on his evidence. 

[70]        My decision regarding Corporal Windover’s evidence is driven by the inconsistency in his report where he wrote that he activated his siren on Canada Way, and in contrast he stated in direct examination that he activated his siren on 18^th Avenue.  A further inconsistency was he originally testified that he and Mr. Schendel made eye contact at the intersection of 18^th Avenue and 7^th Street, this evidence ultimately changed to Mr. Schendel looked his way.

[71]        A further concern with Corporal Windover’s evidence involves his reliability.  Specifically, he made the barest of notes, he recorded the wrong licence plate number, and he was unable to state if Mr. Schendel was wearing goggles and yet he testified that Mr. Schendel looked back at him.  Finally and despite knowing the area, Corporal Windover misidentified the Husky station.

[72]        In summary, I accept that Corporal Windover saw Mr. Schendel operating the motorcycle and that he arrested Mr. Schendel.  I also accept that he noticed the damage to the ignition and that he located an open multi-tool in Mr. Schendel’s pocket and that this implement operated the ignition.

[73]        I accept the evidence of Constable Abraham.  Significantly, the keys that were photographed came from the bag on the motorcycle and not from the ground as suggested by Mr. Schendel.  Therefore, and by implication, I reject Mr. Schendel’s evidence that he used a key to start the motorcycle and that the key fell out when the motorcycle fell over.

[74]        After considering the evidence that I accept, I am unable to determine the route that Mr. Schendel travelled, nor, can I reach a determination with respect to when Mr. Schendel was signalled to pull over.  Absent findings on these critical issues I cannot conclude beyond a reasonable doubt that Mr. Schendel failed to stop as soon as reasonable.  I am also unable to conclude beyond a reasonable doubt that Mr. Schendel was operating the motorcycle in a dangerous manner.  Accordingly I find him not guilty of dangerous driving and evading the police.

[75]        With respect to possessing the stolen motorcycle, I am satisfied beyond a reasonable doubt that Mr. Schendel wilfully blinded himself, to the fact that the motorcycle was stolen.  My conclusion is based on the following findings, Mr. Schendel knew the motorcycle did not have a licence plate, Mr. Schendel obtained and placed an inactive licence plate on the motorcycle, Mr. Schendel operated the ignition, thus he must have observed the damage, and finally, I find Mr. Schendel did not use a key to start the motorcycle, rather, that he used the multi-tool, which was found open and in his pocket.  Collectively, these facts satisfy me beyond a reasonable doubt that Mr. Schendel willfully blinded himself to the obvious facts indicating that the motorcycle was stolen.  I therefore find him guilty of possessing stolen property.