Territorial Court

R. v. HOSAM CHOUCAIR, 2011 NWTTC 13			
Date:  2011 06 08
			File:  T1-CR-2010- 000404
		          			


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


	BETWEEN:

HER MAJESTY THE QUEEN


- and -


HOSAM CHOUCAIR



REASONS FOR DECISION
of the
HONOURABLE JUDGE CHRISTINE GAGNON




Heard at:	Yellowknife, Northwest Territories
	January 26, 2011 and May 6, 2011

Reasons Filed:			June 7, 2011

Counsel for the Crown:		D. Praught

Counsel for the Accused:		C. Moustarah



[s. 249.1 of the Criminal Code]


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
	BETWEEN:
HER MAJESTY THE QUEEN
-and-
HOSAM CHOUCAIR
____________________________________________________________________


[1]	Hosam Choucair stands accused of having contravened section 249.1 of the Criminal Code on or about February 12, 2010, at or near the City of Yellowknife, in the Northwest Territories.  This offence is commonly known as “criminal flight”.  It is a fairly recent addition to the Criminal Code and the purpose of this section is to address the hazard caused by high-speed chases.

[2]	At trial the Crown called three witnesses, Constables Elliot Van Dusen, Paul Mounsey and Spencer Lang of the Royal Canadian Mounted Police, and tendered a warned statement made by the Accused, the voluntariness of which being conceded by the Defense.  Counsel for the Defense did not call evidence.  Most of the facts are not in dispute and I make the following findings:

[3]	On February 12, 2010, in the City of Yellowknife, Northwest Territories, at about 12:50, Hosam Choucair was driving a red Ford Taurus with an Alberta license plate, accompanied by a passenger.  Three members of the Royal Canadian Mounted Police were patrolling in a dark-colored Dodge Durango, which is a Sport Utility Vehicle.  This vehicle was equipped with a siren and flashing lights.  The lights were fixed onto the windshield inside the vehicle and their size can be observed on picture no 24, which was filed as part of Exhibit 2. This rectangular light set occupied about 10% of the surface of that windshield.  Aside for a conspicuous antenna and the lights on the windshield, this vehicle was otherwise unremarkable.  For simplicity, I will refer to it as the “police vehicle”.

[4]	These officers were wearing plain clothes; two of them were carrying their police badge around their neck in a holder while the driver of this police vehicle did not display his badge in any way.  The size of this badge was “an inch and three quarters high by on inch and a half wide.”  The letters P.O.L.I.C.E. were about “three to four millimeters high”.  The RCMP members did not wear their duty belt or body armour and nothing on their clothing indicated that they were police officers.  They were all carrying a police-issued sidearm.  Although this was not an undercover operation, these three officers obviously did not want to draw attention to themselves.

[5]	They came across the Ford Taurus operated by Mr. Choucair in an area of Yellowknife known as the Con Mine road (as it leads to a deserted mine site of the same name).  Constable Spencer Lang, who was driving the police vehicle, observed the Ford Taurus travelling past them in the opposite direction.  Constable Lang turned around at the Con Mine security gate, went back on the road in search of the Ford Taurus.  Constable Lang then saw that vehicle parked, facing the police vehicle.  The door on the passenger side was open and the passenger was now running back to the vehicle.  The passenger swallowed something and chased it down with liquid from a transparent bottle.

[6]	Constable Lang drove up to the Ford Taurus and stopped in front of it, “nose to nose” while turning on the lights and sirens. Constables Paul Mounsey and Elliot Van Dusen exited the police vehicle with their sidearms drawn (Constable Van Dusen was holding it at shoulder height while Constable Mounsey held it in the “low ready” position). Constable Lang remained seated behind the steering wheel.  Constables Mounsey and Van Dusen were shouting: “Police! Stop!”

[7]	Mr. Choucair started to move the Ford Taurus backwards and continued to back away from the police vehicle at a speed of 30 km/h.  Constable Lang followed him, still operating lights and sirens, while Constables Mounsey and Van Dusen were running on the road, rapidly dropping behind the moving cars.  The total distance covered was about one kilometer over a few minutes.  Mr. Choucair eventually stopped the Ford Taurus at the Con Mine gate, as there was nowhere else to go.  Constable Lang caught up with the Ford Taurus and eventually placed its occupants under arrest.

[8]	With respect to this narrative, the only conflicting evidence relates to distances.  Constable Lang said that he observed the Ford Taurus parked, facing them, at a distance of about 10 to 15 feet,   while Constable Mounsey said that they first observed the Ford Taurus with an open passenger door when they were at a distance of 100 metres and that the passenger was 15-20 feet away from the vehicle. Constable Mounsey said that the police vehicle was immobilized approximately 15 feet in front of the Ford Taurus  and that he jumped out of it.  I find that Constable Mounsey’s evidence was more accurate and I therefore find that the police vehicle stopped at a distance of 10 to 15 feet from the Ford Taurus.

[9]	Although it is not a typical situation with respect to a police chase, I am satisfied from this evidence that Constable Lang, being a peace officer, was operating a motor vehicle while pursuing the vehicle driven by Hosam Choucair  as his intent was to overtake it.

[10]	At issue is whether the Crown has proven beyond a reasonable doubt that the Accused failed without reasonable excuse and in order to evade the peace officer to stop his vehicle as soon as was reasonable in the circumstances.  The Crown must prove that the accused knew he was being pursued by a peace officer,  given that criminal flight is a full mens rea offence.

[11]	The Crown asked the Court to draw an inference that the Accused knew that he was being pursued by a police officer operating a vehicle because of the use of sirens and flashing lights.  The Crown added that the Accused could not have missed the fact that the men exiting the vehicle were wearing police badges, were carrying guns and shouting “Police, Stop!”  In support of this argument, the Crown also tendered as part of its case a warned statement of the Accused obtained by Constable Lang.  The Crown takes the position that the court should disbelieve Mr. Choucair as what he told the police was inconsistent to the point of being incredible.  The Crown also says that this statement with all its improbabilities is direct evidence of the knowledge of the Accused.

[12]	The Defense argued that the Crown cannot have it both ways, pointing out that if the Crown chose to tender an exculpatory statement of the Accused as part of its case, the Court must accept it for the truth of its content and find that there is in fact positive evidence of lack of knowledge, given this is the claim made by the Accused.

[13]	In order to resolve this issue, I must consider the following legal principles:
1.	Out of court statements by an accused are receivable in evidence against him, but not for him.
2.	An accused is entitled as of right to have a statement made by him considered in its entirety and in the absence of the falsity of any exculpatory portion, to have that exculpatory portion accepted as true.

[14]	I conclude that it would have been impossible for Mr. Choucair to refer to his warned statement without testifying, but since the Crown chose to tender it, the Accused is entitled to have the court consider it; but how does the Court decide whether any exculpatory portion of a statement is false?  I determine that in order to make such a finding, there must be evidence from other witnesses specifically contradicting what the Accused told the police, or the statement of the Accused must contain flagrant inconsistencies or internal contradictions such that I could infer that the exculpatory portions it contains are false.

[15]	Mr. Choucair told Constable Lang that he did not know that he and the armed men who exited the Dodge Durango were police officers, that his focus was on the drawn firearms and that he did not notice the flashing lights nor hear the siren because he was stressed.  He referred to past personal experiences to explain his reaction.  He said that he was under stress when he saw the guns and that is all he could think of.  His attention was then directed to the rear view as he was driving backwards.

[16]	There is no evidence on which I may conclude that the Accused did not have these past experiences or which would allow me to conclude that this assertion is false.  No evidence was tendered with respect to whether the windows of the Ford Taurus were rolled down to any degree , and although there is no question that the sound of the siren was loud enough that it could possibly be heard through closed windows, it may also have been loud enough to cover the police officers’ shouts.  Constables Mounsey and Van Dusen did not come close to the sides of the Ford Taurus. There is no evidence of any conversation between the occupants of the Ford Taurus or any sign of collusion between the Accused and the passenger tending to show any intention to obstruct the police.

[17]	The evidence rather tends to confirm the statement of the Accused because the police were not in uniform; the only element of their attire that would identify them as police officers was their badge, which was too small to decipher at distance.  The vehicle was unmarked and its equipment was not so typical that one can only conclude that it belonged to a police vehicle.  In order to answer the question “what other type of vehicle other than a police vehicle could it be?” the Accused would have needed time to think, which he alleged he did not take prior to moving his vehicle.  The officers had drawn their weapons and one was holding it at shoulder height.

[18]	 Upon considering the totality of the evidence, I conclude that there is no evidence that would specifically contradict what the Accused told the police. I have not found this statement to contain flagrant inconsistencies or internal contradictions such that I could infer that any exculpatory portions within the statement are false.  No matter how suspicious his conduct was to the police, I find no probative evidence on the record on which I can conclude that Mr. Choucair positively knew or should have known that he was dealing with police officers, let alone undercover police officers.

[19]	I find additional support in the case of R. v. Woodland,  in which the Saskatchewan Court of Queen’s Bench was of the opinion that the principles of R. v. W.D. are equally applicable to both an accused's testimony at trial and his out-of-court statements tendered by the Crown; the Court added: “In the event that the trier of fact believes the exculpatory portions of the statement or, short of belief, is left in reasonable doubt by it, the accused must be acquitted. Even if not left in doubt by the statement, the accused is nonetheless entitled to a finding of not guilty if the accepted evidence falls short of proof beyond a reasonable doubt.”

[20]	I keep in mind that Mr. Choucair’s warned statement is self-serving but I am not prepared to reject it as improbable or not worthy of consideration.  It is possible that he only focused on the firearms being pointed at him and in his stress, did not hear the words shouted by the police, or did not logically reason that the individuals jumping out of a Sport Utility Vehicle were police officers.  It is possible that he reacted out of an instinctive need to preserve himself.  In any event, the pursuit was very short, and again it is not improbable that in this interval, Mr. Choucair came to the realization that the people pursuing him were perhaps police officers.  I decline therefore to draw an inference of true knowledge on the basis of the warned statement.

[21]	Therefore, the Accused is entitled to have the court consider his exculpatory statement accepted as true.

[22]	Turning now to the totality of the evidence, I cannot definitely conclude that the Accused’s actions prove his knowledge that he was being pursued by a police officer, as I find that the following evidence raises a reasonable doubt with respect to this essential element:

	the police were not in uniform;
	they were in a vehicle that is not a typical police vehicle, marked or not;
	this vehicle had no particularity except for being equipped with a siren, flashing lights set inside the windshield and an antenna;
	two officers jumped out of the vehicle holding handguns, and wearing nothing that could identify them as police officers except their badge, which they carried around their neck;
	this badge was small and difficult to distinguish at a distance of 10-15 feet;
	the Crown tendered a warned statement of the Accused as part of its case in chief, intending to rely on its contents, in which the Accused stated many times that he did not know that the armed men who jumped out of the SUV were police officers and that he moved his vehicle away in an attempt to preserve himself from this situation.
 [23]  	As a result, I conclude that the Crown failed to prove beyond a reasonable doubt that the Accused “failed without reasonable excuse and in order to evade the peace officer to stop his vehicle as soon as was reasonable in the circumstances” and I find the Accused not guilty as charged.


Christine Gagnon
 J.T.C.
Dated at Yellowknife, Northwest Territories,
This 8th day of June, 2011.
	
2011 NWTTC 13
T1-CR-2010-000404


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



BETWEEN:

HER MAJESTY THE QUEEN

- and -

HOSAM CHOUCAIR





REASONS FOR DECISION
of the
HONOURABLE JUDGE CHRISTINE GAGNON