R. v. Beardy, 2022 MBPC 59

CITATION: R. v. Beardy, 2022 MBPC 59 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Gingera ) for the Crown/Applicant - and – ) ) Raymond Marshall Beardy ) J. Clermont ) for the Accused/Respondent ) ) Ruling delivered: ) December 20, 2022 Pollack S.P.J. [ 1 ] On December 19, 2022 I dismissed from the bench an application by the prosecution for an order that Raymond Marshall Beardy (“the Accused”) abstain from communicating with Erin Jessup concerning an August 27, 2022 assault causing bodily harm charge (“the ACBH”).

This is an amplification of my reasons. [ 2 ] Criminal Code subsection 516(2) authorized my discretion to “order that the Accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified…”. The defence did not consent to an order concerning Ms. Jessup.

Counsel advised that they had agreed that I should issue such an order concerning complainants and witnesses from the ACBH case and complainants and witnesses from more recent prosecutions that brought the Accused into custody. [ 3 ] After a contested hearing, in August, a Judge ordered the Accused released upon the ACBH matter and his release order does not forbid or otherwise inhibit communication between him and Ms. Jessup. I would add, parenthetically, that the Accused is in treatment for cancer and relies upon Ms.

Jessup for support. [ 4 ] This was not a bail application as it was agreed that the Accused be remanded in custody. The prosecution clarified that its application was based solely on the ground that Ms. Jessup is also an Accused in the ACBH matter. The prosecutor stressed that permitting co-Accused to communicate threatened “the truth-seeking function” of the Court. He submitted that these applications are common and “routinely granted” because of “the interests of justice”. In that latter regard, certainly an objection by the defence to an application like this is rare.

In fact, the application’s citation has become both a noun – “a 516” – and an adverb – “a 516 consent”. [ 5 ] Let there be no equivocation about a decision to order a prisoner not to communicate with another person; that decision is adjudication. Notwithstanding its relaxed rules of evidence and the frequency of consent provided by instructed counsel, that decision can only be made when the parties agree or after a fair hearing in which the evidence is weighed to determine if such an order would be “in the interests of justice”.

Certainly if there was evidence of a threat to “the truth-seeking function”, such an order would be in the interests of justice. [ 6 ] The prosecution did not suggest that communication between the Accused and Ms. Jessup since the August 27, 2022 release order was concerning. They brought forth no evidentiary allegation other than that the Accused and Ms. Jessup “are co-Accused”. The application was brought as if it was axiomatic that, upon a motion by the prosecution, an order under subsection 516(2) must be granted. No such axiom exists.

Therefore, there is no evidence in support of the application and it is dismissed. “Original signed by” Pollack S.P.J.