r v. JOEL BEAKES, 2017 QCCQ 7003

R. c. Beakes 2017 QCCQ 7003 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY Criminal and Penal Division No. 460-01-029230-152 DATE: June 14, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

JOEL BEAKES Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In the midst of a snowstorm, the vehicle of the accused hit a snowplough and then swerved. Joel Beakes told the police officer who had rushed to the scene that he was the driver. The police officer detected the smell of alcohol on Mr. Beakes’s breath and therefore ordered him to provide breath samples. The accused ultimately failed the breath test. He was accused of driving with a blood alcohol concentration level over the legal limit.

The results of the breath test were filed with consent as evidence. Everything seemed straightforward. [ 2 ] Not so, said Joel Beakes’s attorney. THE FACTS [ 3 ] Granby was hit by a snowstorm at around 5:20 p.m. on February 8, 2015.

Luc Laurendeau, a snowplough operator, was driving his 10-wheel truck equipped with a snowplough blade and an additional blade on the right-hand side of the vehicle for the purpose of clearing snow from Boulevard David Bouchard, one of Granby’s main arteries. [ 4 ] As he drove up a hill on the boulevard, after leaving the intersection with Rue Dufferin, another major street in Granby, he heard a noise.

He soon realized that a vehicle, which we know was Joel Beakes’s pickup-type truck, had driven up behind him in an attempt to pass on the right and had hit the plough blade on the right-hand side of the truck. [ 5 ] I understand that this snow removal device is not particularly rare or different from the equipment usually used to clear snow off roads. The right-hand plough blade serves to channel the snow pushed by the main blade located on the front of the truck.

I also understand that it is useful when the lanes that need to be cleared are double or particularly wide. [ 6 ] When Luc Laurendeau heard the noise, he immobilized his truck as quickly as possible and got out. He saw that the vehicle that had hit his snowplough was now in the ditch, lying upside down. Other drivers had already stopped and had probably come to the assistance of the occupants of the damaged vehicle. Luc Laurendeau did not go near the vehicle himself, but inspected the damage to his truck instead. [ 7 ] Fortunately, the damage was limited.

The right-hand plough blade was now practically resting against the truck and he noted that the fastening device seemed to be detached rather than broken. Another snowplough also stopped and then the police arrived. [ 8 ] Martin Foisy, an experienced Granby police officer was the first to arrive on the scene, within minutes of the accident. He was alone in his police car. [ 9 ] He said that the spot where the collision had occurred was a particularly busy part of Granby, especially at that time of the day. His first concern was to understand what had happened and to make sure that the people involved were safe.

Other vehicles, in addition to the damaged vehicle and the two snowploughs, had stopped. There were five people near the upturned pickup truck. The police officer asked them who the driver was and Joel Beakes said that it was him. [ 10 ] Joel Beakes spontaneously explained to Martin Foisy that he had seen the snow removal truck and had tried to pass it on the

right, but without realizing that there was a plough blade on the front right-hand side, which he hit. He then skidded and ended up in the ditch. He said that no one was hurt. The spouse of the accused, who was also present, was allegedly a passenger in the front right-hand side of the vehicle. [ 11 ] Joel Beakes is not contesting that he made this statement. [ 12 ] Police officer Foisy noticed that the breath of the accused smelled of alcohol and that he had glassy eyes, spoke slowly, drew out his words and seemed to be slurring his speech.

Officer Foisy then went to see the other driver, Luc Laurendeau, and noted that he was not injured either. [ 13 ] Considering his observations related to alcohol consumption on the part of the person who had introduced himself as the driver, Martin Foisy decided to order him to provide a breath sample by means of an approved screening device (hereinafter “ASD”). [ 14 ] After failing the test, the accused was taken to the police station where he provided two breath samples for a breath test carried out by means of an approved instrument that yielded, respectively, results of 113 mg and 93 mg of alcohol in 100 ml of blood.

These results are not being contested. That is the evidence of the prosecution. [ 15 ] Tina Horton was heard for the defence. She has been the wife of the accused for many years. She was in the damaged vehicle. [ 16 ] She explained that the accused had had a serious accident in 1995 that had left him disabled. Since the accident, he has allegedly had several health problems of an orthopedic nature and, from what I understand, in the form of possible brain injuries or trauma. [ 17 ] In 2014, he was also diagnosed with diabetes.

She said that at that time, in 2014, it was determined that he had the disease, although he had certainly been suffering from it for several months already without it being diagnosed or treated, with the result that the disease had already damaged his nervous system. [ 18 ] Since the diagnosis, Joel Beakes has apparently been in severe pain for which he has had to take certain medications, but that have not proven to be very effective. Also since then, the accused’s sleep has been fairly poor and the couple hardly go out any more.

On account of his diabetes, Joel Beakes no longer drinks alcohol. [ 19 ] On the day in question, February 8, 2015, the accused was feeling better and the couple decided to go shopping at the Les Galeries de Granby shopping centre in Granby, with the intention of having supper afterwards at Le St-Ambroise, a nearby restaurant- bar. I understand that it was a rare outing for the couple and that they saw it as a special occasion. [ 20 ] They left their residence in Shefford at 12:30 p.m. and headed to Les Galeries de Granby, particularly via Boulevard David- Bouchard.

Joel Beakes was driving. [ 21 ] Tina Horton and the accused shopped a bit at the shopping centre, but after a little while, the accused chose to sit in the fast- food restaurant area and wait for his spouse, who continued to visit the stores for a few more hours. At 4:30 p.m., Tina Horton joined the accused, who appeared to be in pain. I note that they seem to have remembered that, the previous Christmas, the accused drank a bit of alcohol, which allegedly eased his pain, at least momentarily. Despite the pain, they decided to go to the St-Ambroise bar.

Joel Beakes drove there. [ 22 ] They stayed there for 30 minutes. During that time, the accused had two drinks. His pain did not go away. They decided to return home. Tina Horton said that they did not think it was worth going to the hospital because they would have had to wait for eight hours and would have been told that nothing could be done. [ 23 ] Tina Horton has never had a driver’s licence, but she occasionally drives, although rarely, the accused’s pickup truck. Given that her spouse was in pain, she decided to drive. [ 24 ] She was the one who was driving and who had the accident on the way home.

She did not see the snowplough until it was too late. She lost control of the vehicle and swerved. At the scene and while in the vehicle, the accused told her “don’t worry, I will handle it”. She does not speak French. The police officer who arrived on the scene did not appear to speak English very well. She did not say a word because her husband was looking after everything. [ 25 ] She was thus the one who was driving. However, to avoid getting into trouble because she did not have the right to drive, she did not want to admit that she was driving.

She had not had anything to drink and, in fact, she never drinks alcohol. [ 26 ] She understood that her husband was under arrest and was being taken to the police station for impaired driving. She did not say anything, at least not prior to the trial. [ 27 ] The accused did not testify. That was his right. ANALYSIS AND DECISION [ 28 ] The case seems very straightforward. [ 29 ] A traffic accident occurred during a snowstorm. The vehicle owned by the accused, in which he was travelling, swerved. He was the only occupant who had a driver’s licence.

Once outside the vehicle and in response to a question by the first police officer to arrive on the scene, the accused declared that he was the driver. [ 30 ] Since the police officer noticed the smell of alcohol on the accused’s breath, the accused was ordered to provide a breath sample. Joel Beakes was ultimately found to have a blood alcohol concentration level over the legal limit. [ 31 ] In itself, and in the absence of a defence, the evidence is amply sufficient for the accused to be found guilty. To avoid such a

conviction, the accused simply had to raise a reasonable doubt. [ 32 ] Reasonable doubt is not just any doubt. The Supreme Court of Canada defined it as follows in R. v. Lifchus : [1] 39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines: The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence .

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high .

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. (Emphasis added.) [ 33 ] Adopting this view of reasonable doubt, I also believe that it is worthwhile to examine the evidence as a whole, including the defence, while trying to imagine what would have been the most normal and predictable human behaviour in the circumstances and by comparing it to what happened on February 8, 2015, according to the evidence adduced. [ 34 ] To put the key issue into its proper perspective, I repeat that there is no doubt in my mind and nor do I believe it is possible to support the opposite theory that, without the defence, the Crown has easily met the burden of proof.

In other words, it is in the defence and only in the defence that the reasonable doubt can be found. [ 35 ] First of all, I note that Joel Beakes did not say at any time that he was not the driver. On the contrary, he said that he was the driver when Martin Foisy put that question to him. That statement has been admitted. He even provided the police officer with details about how the accident had occurred—details that corresponded to what the police officer was able to observe and, at present, to what Luc Laurendeau said in his testimony. [ 36 ] An accused is not under any obligation to testify.

Nor is he or she obliged to answer a police officer’s questions. However, nothing prevents him or her from doing so. [ 37 ] By using common sense regarding what I feel would be most consistent with the way in which the average person would predictably behave in the same situation, is it possible to re-examine the claims of Joel Beakes’s spouse, Tina Horton? [ 38 ] The logic behind the lie told to the police officer stems from the fact that Tina Horton does not have a driver’s licence, and having had an accident, her husband, thinking that he was sober, decided to take responsibility for the event.

Thus far, I find this conceivable, although morally questionable. [ 39 ] However, we know that the situation evolved. [ 40 ] Joel Beakes was ordered to breathe into an ASD and failed. As of that moment, the situation changed significantly: he was formally arrested, put into a police car and taken to the police station. Was it not much clearer that his situation had become considerably worse? Was it still reasonable to keep up the lie? [ 41 ] Within the next few minutes, the accused was put in contact with a lawyer. The same logic certainly suggests that he would have told this lawyer the truth.

Is it not predictable as well that the lawyer would have suggested that he tell the police the truth? Why continue the lie? [ 42 ] But there is much more: the entire theory of the defence that was intended to raise a reasonable doubt is based on what is definitely a rather strange sequence of events, justified by a very serious medical condition of Joel Beakes. [ 43 ] In another case, I explained and elaborated on the relevance, and even the need to provide medical evidence in cases involving the refusal to give breath samples.

The question was whether such medical evidence was indispensable. [2] By analogy, I always believe that although one can imagine situations where medical evidence is not indispensable, its presence is definitely desirable. [ 44 ] That is especially true here. From what I understand, Joel Beakes has been disabled for many years. His chronic pain appears to be of more recent origin, but stems from the failure to make an earlier diagnosis of diabetes, an error, if indeed it is an error, that caused damage to his nervous system.

[ 45 ] I also understand that if the accused did not go to the hospital on the day in question, it is because he knew that he would have to wait for eight hours and that no one would be able to help him. [ 46 ] If I believe all of the above, I can only conclude that Joel Beakes must have received precise medical diagnoses in the past, must therefore have gone to the hospital or a doctor quite frequently in the past in order to relieve his pain and must have waited at the emergency department for many hours on several occasions before going home.

In short, it is obvious that he definitely has at his disposal and has access to, at no great expense, a very large number of useful data or documents—other than the word of his spouse alone—that could support his medical status. However, he did not file anything: no medical notes, expert reports, lists of medications, nor even the names of the medications that he was allegedly taking. I find that odd. [ 47 ] Similarly, according to the evidence, the accused never mentioned his pain to the police officer who rushed to the scene, even though the officer asked him how he was after the accident.

He made no mention of pain during the entire time that he was in the presence of the police officer. [ 48 ] Still in connection with his state of health, I also find Tina Horton’s version to the effect that they had discovered some time ago (2014-2015 Christmas holidays) that alcohol could ease Joel Beakes’s pain, strange, if not suspicious.

On the one hand, she said that the accused had not drunk at all since his diabetes diagnosis, while, on the other hand, Joel Beakes had two drinks in 30 minutes on February 8, 2015 to relieve his pain. [ 49 ] First of all, I find that two drinks in 30 minutes is a lot, especially in the case of someone who does not usually drink. Second, I find it hard to explain why they didn’t wait, and immediately left the St-Ambroise restaurant 30 minutes after they got there. At best, would it not have been wise to wait longer in order to see if the alcohol would have an effect?

In addition, I find it hard to believe that this couple, who are apparently almost always confined to their home, would choose the day of a snowstorm to go shopping together and, as it were, enjoy an outing. [ 50 ] In a completely different vein, and in connection with the accident itself, we know that the latter took place at a spot well known to the Beakes-Horton couple. It is probably the main artery between their residence and the city of Granby.

Therefore, it is conceivable that they know the layout, such as the number of lanes, the places where lanes are larger and so forth. [ 51 ] Consequently, I find it surprising, to say the least, that a person who is clearly not very used to driving, who is probably ill at ease doing so, but who at the same time is perfectly sober, would decide to pass on the right a large snowplough whose normal dimensions and typical attachments are known, during a snowstorm when the visibility was reduced.

Once again, is not such daring and risky behaviour more typical of a person who has lost their inhibitions and is less inclined to make good decisions? [ 52 ] Lastly, we also know that a number of people helped Tina Horton and Joel Beakes to get out of the damaged pickup truck. Those people did not testify, and nor were they identified.

However, the evidence is clear with regard to both their presence and the help they provided. [ 53 ] The evidence is also conclusive that when the police officer Martin Foisy arrived, there were at least four to five people on the scene, including the accused and his spouse, who were together. They were together when the police officer asked the group who was driving.

No one said anything when Joel Beakes said that he was the driver. [ 54 ] Once again, common sense and human nature lead me to believe that those people, or clearly some of them at least, knew who was actually driving the vehicle, and that those people would surely have reacted if such an untruthful answer had been given to the police officer. Those people were not related to the accused or his spouse or to the police officer on the scene. Had they had been surprised by Joel Beakes’s answer, I find it very revealing that none of them reacted, told the truth or asked to see officer Foisy in private.

This lack of reaction leads me to believe that all of the people present accepted Joel Beakes’s statement that he was the driver. [ 55 ] For all of these reasons, the testimony of Tina Horton has not raised any doubt in my mind. [ 56 ] Therefore, the accused is declared GUILTY of the charge as laid. __________________________________ Serge Champoux J.C.Q. Mtre. Karyne Goulet Attorney for the prosecutor Mtre. Alexandre Caissie Attorney for the accused Date of hearing: April 4, 2017