R. v. Beaumont Date:, 2012 BCPC 230

Citation: R. v. Beaumont Date: 20120301 2012 BCPC 0230 File No: 72229 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVIS LEE BEAUMONT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: S. Gill Counsel for the Accused: M. Stern Place of Hearing: Abbotsford , B.C. Date of Hearing: January 24, 25, 30, 2012 Date of Judgment: March 1, 2012

[ 1 ] THE COURT : Mr. Beaumont is charged with production and possession of marihuana back in October of 2008. [ 2 ] At the outset, counsel advised me that this was a circumstantial case. Crown was relying on surveillance observations of a suspect seen and arrested on the target property, in the vicinity of an outbuilding containing a marihuana grow operation, to prove knowledge and control. Before we get to that point, however, Crown first has to establish identification beyond a reasonable doubt: that the accused in court is the person who was seen and arrested in October of 2008.

In assessing proof of identification I have considered the evidence of six police witnesses. [ 3 ] First, Cpl. Lafontaine. He saw the suspect twice during surveillance, and handcuffed him on scene. When asked whether he would recognize that person he said, "I believe so," but then went on to say that, because four years have elapsed, even after looking at photographs, he could not say for certain. He did not make any identification. [ 4 ] Second, Cst. Hooker. He was the arresting officer. He Chartered and warned and transported the suspect.

In court, he gave just a sparse description of the person that he had dealt with, that being a Caucasian male with darker hair. He said, "He's in the courtroom today." Crown asked, "You recognize him being here today?" He said, "That's correct." However, he did not identify the accused. He was not asked to point out the individual in court or to describe what that person was wearing. Certainly, the court did not make note of any identification. As well, in cross-examination, Cst. Hooker acknowledged that he had not made any notes of any physical description.

He did not recall whether the person had eyeglasses or what he was wearing; he did not recall facial features or any distinguishing marks or features; he did not recall any distinguishing characteristics. Even if he had actually pointed out a person in court, there would still have been issues as to the reliability of that identification, as was the case, in my view, with respect to Cpl. Stobern. [ 5 ] Before I get to that witness, however, I do note that another police officer, Cst.

Gordychuk, who assisted Hooker in transporting the suspect, and then had further involvement with him booking him in, taking fingerprints, things of that sort, that officer was not able to provide any identification in court. [ 6 ] Turning next to Cpl. Stobern, he interviewed the suspect, so he spent some time with the individual. He was asked, "How did he appear," to which he responded, "Tired," which may well not have been what Crown was intending. He then said, "I recall what the individual looked like," and he identified the accused in court.

He was not asked to provide any description of the individual that he dealt with back in October of 2008, so there was no basis upon which the court could assess his in-court identification. Instead, in cross- examination, he said that he had not made any notes about what the person looked like, he had not seen him before or since, and did not recall what he was wearing, did not recall facial features, facial hair or distinguishing marks.

When asked whether there was anything about the person, shape of face or anything else that stood out, he said, "Nothing," so there was no groundwork provided to allow the court to assess the reliability of the identification in court. He also said that looking at a photograph that morning had assisted him in his identification, but there was no evidence as to what photograph he had looked at, again calling into question the reliability of his evidence. [ 7 ] Finally, I turn to the evidence of Cpl. Leeson and Cst. Parslow. Those officers spent five minutes with the suspect releasing him from custody. Cpl.

Leeson, who actually dealt with the individual, did not provide any identification evidence. [ 8 ] Cst. Parslow did; she made a positive in-court ID. At first her evidence of identification appeared to be good, so she, unlike any of the others, actually provided a description of the person that she had dealt with back October 2008: that being five foot ten, medium build, dark hair, part Asian/part Caucasian, dark eyes, olive skin tones; descriptions which would assist the court in assessing the reliability of her evidence.

However, in cross-examination, what appeared to be a solid identification in court collapsed. At first, she said that a percentage of the five minutes that she had spent with the individual was actually involved in gathering his effects, looking under the counter, so she could not say how much of that five minute time she was actually looking at the person. Some of the descriptors shifted during the course of her cross-examination.

For example, regarding facial hair, at first she said definitively that he did not have any facial hair, then she said she was not a hundred percent certain, and then she said, "I don't recall if he had any facial hair." [ 9 ] But still a positive in-court identification until what came next, which I have to say, I found rather disturbing.

The officer acknowledged that at some point before testifying, she and three of the other police officers (and there was no evidence as to which three police officers those were) had a discussion about whether the accused in court was the person who was involved in the offence back in October 2008. The evidence, then, before the court is that four police officers were involved in a discussion outside of court about whether or not "that was him"? Cst. Parslow, who made the positive in-court identification, acknowledged that, before testifying, she said outside court something like, "I think he's here.

The guy there, I would assume that's the guy because he's sitting in the courtroom, but he's dropped some weight." Using that kind of phrasing, "I think," "I would assume," directly contradicts the positive in-court identification, and is not the tenor of evidence that one would expect from a police officer. It seriously calls into question the reliability of Cst.

Parslow's identification evidence, but it also taints any evidence of identification from all the other witnesses, since the court does not know which three other officers might have been involved in that discussion. [ 10 ] The identification evidence that was given in court is not sufficient to prove that Mr. Beaumont, the accused before the court, was the person who was dealt with by the police on the target property back in October 2008. [ 11 ] Finally, Crown asked the court to rely on what has been termed "circle of identification".

Specifically, in this case, there was a warrant in the first instance after the Information was sworn. According to the Record of Proceedings, the accused was picked up on the warrant, released for later dates and has been appearing since then. [ 12 ] The problem with the circle of identification in this case is that there is a break in the connection linking the accused back to the suspect of the offence. This is not a case where the suspect was arrested and released with a specific return date, which might allow Crown to rely on circle of identification.

There is a break in that circle, and, accordingly, the court cannot use that to bolster the issue of identification.

[ 13 ] Mr. Beaumont, the evidence does not satisfy me beyond a reasonable doubt that you are the person who was seen on the target property, and I acquit you of both counts. [ 14 ] MR. STERN: Thank you, Your Honour. [ 15 ] MS. GILL: Yes, Your Honour, now to deal with the issue of forfeiture of the items that were seized by the police, the Crown is seeking a forfeiture order regarding the marihuana, the grow itself and the grow related equipment. [ 16 ] THE COURT: And I am certain that Mr. Beaumont does not take issue with respect to that. [ 17 ] MR.

STERN: That's correct, he has no -- he makes no claim with respect to any of those items. [ 18 ] THE COURT: Now, there were matters that were taken from -- [ 19 ] MS. GILL: From his home, and with respect to forfeiture regarding those items there is -- there was some marihuana found there, along with scales. There was a money counter, cash and documents. Now, with respect to the Code -- I should say the Controlled Drugs and Substances Act ,

section 16, where someone is not convicted of the offences and regarding forfeiture the onus shifts -- beyond a reasonable doubt that it's offence related property. So, regarding the cash, I don't know if Your Honour would be satisfied beyond a reasonable doubt that the cash is offence related property, but certainly we are seeking forfeiture of the scales and the marihuana. [ 20 ] MR. STERN: To make things easier, he's not contesting the return of the scales and, of course, not the controlled substance.

If my friend is asking Your Honour to rule that forfeiture of all items save and except the cash seized, then he would be consenting to that. [ 21 ] THE COURT: Crown is seeking forfeiture of the cash, but I am not satisfied that it is offence related property so the cash will be returned. Are there any documents that [ 22 ] MS. GILL: There were documents that were seized as well. [ 23 ] MR. STERN: And I'm not opposed if my friend wishes to draft an order for Your Honour's signature and, of course, personal documents to return and other than that -- [ 24 ] THE COURT: All right.

So, I will make an order of forfeiture of all of the items that were seized from the target property. At the Langley property, marihuana and scales are to be forfeited. Cash and personal documents are to be returned to Mr. Beaumont. [ 25 ] MS. GILL: Yes. [ 26 ] THE COURT: Okay, thank you. [ 27 ] MR. STERN: Thank you, Your Honour. ________________________ C.J. Rounthwaite Provincial Court Judge