R. v. Beardy, 2023 MBKB 103

Date: 20230615 Docket: CR 22-01-38982 (Winnipeg Centre) Indexed as: R. v. Beardy Cited as: 2023 MBKB 103 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING ) ) Sivananthan Sivarbouban ) for the Crown - and - ) ) Barry Sinder JOHNATHON FRANKLIN BEARDY AKA ) for the accused JONATHON FRANKLIN BEARDY, ) ) accused. ) Judgment Delivered : ) June 15, 2023 TOEWS J.

Introduction [ 1 ] The accused, Johnathon Beardy, is charged with refusing to comply with a demand made to him by a peace officer to immediately provide the samples of his breath, as in the opinion of the peace officer, was necessary to enable a proper analysis of his breath to be made by means of an approved screening device (ASD) contrary to s. 320.15(3) of the Criminal Code of Canada (the “ Code ”). [ 2 ] With the exception of the question of whether the peace officer was in a position to demand that the accused provide a breath sample forthwith, all essential elements of the offence have been made out by the agreed statement of facts (Exhibit 1) or specifically conceded by defence counsel in the course of the trial or in his final argument.

Accordingly, the focus of the argument of counsel before me at the conclusion of the trial was whether the evidence established beyond a reasonable doubt that the peace officer had immediate access to an ASD at the time of making the demand of the accused. [ 3 ] Following counsel’s final arguments, I advised counsel that I was satisfied beyond a reasonable doubt that the peace officer had immediate access to an ASD and was therefore in a position to demand that the accused provide a breath sample forthwith.

Accordingly, I entered a conviction in respect of the count specified in the indictment and advised counsel that I would be providing reasons to follow. These are those reasons. The Facts [ 4 ] The offence took place on September 7, 2021, at Lake St. Martin First Nation Manitoba, and that as a result of an all-terrain vehicle rollover at approximately 10:00 pm, a passenger on the vehicle, Allen Beardy, died of blunt head trauma. [ 5 ] Two RCMP constables, Constable B. Crowley and Constable R.

Booth, arrived on the scene at approximately 10:20 pm as a result of a 911 call made at 10:10 pm by Cheryl Richard, a witness who resided in a house close to the accident scene. There were three

adult males lying on the ground near the ATV (quad) which was still running but badly damaged. At the time of their arrival, Allen Beardy was already deceased. [ 6 ] When Cst. Crowley initially spoke to the accused, the accused advised that he was the driver, although he subsequently changed his story and advised that he was not the driver and that he had not been drinking. That story continued to change in the course of the police investigation, and included an assertion by the accused that there was no quad involved in the accident. Following a conversation with the other passenger on the quad, Cst.

Crowley again questioned the accused and he admitted that he had been driving, but that he did not crash. [ 7 ] Although the other surviving person on the quad, Jonathan Cook, also changed his story in the course of the police investigation stating that he had not been on the quad with the deceased, and that the accused was drinking but not driving. At one point he did state that the accused had been drinking one or two beers earlier in the evening. [ 8 ] Although it appears that on the day following the accident, the officer investigating this matter learned that certain aspects of Ms.

Richard’s statement might be improbable, relying on the information that he had at the time, he made the demand of the accused. It is clear and not contested that Cst. Crowley had sufficient grounds to meet the standard set out in the Code in order to make the demand of the accused for a breath sample. [ 9 ] Constable Crowley testified that he did not recall if he had an ASD with him or at the scene generally at the time when he made the demand. He testified he was not aware if Cst. Booth had an ASD, but did testify as to the usual practice of having an ASD in the vehicle while on duty. However, Cst.

Booth was clear in his recollection that he spoke to Cst. Crowley in respect of whether there was enough evidence to make the demand of the accused. He also was clear in his testimony that there were two ASDs at the scene, testifying that he took both ASDs out of the RCMP truck, that he handed one to Cst. Crowley and that he placed the other one on the hood of the truck. He also testified generally about the practice of testing the ASDs to ensure that they were in working order.

The position of the parties [ 10 ] The Crown took the position that all essential elements of the offence had been admitted or otherwise proven and that a conviction should be entered. The focus of the defence argument was that the evidence of Cst. Crowley as to the “usual practice” of having an ASD available in the vehicle while on duty, and Cst. Booth’s recollection as to having two ASDs at the scene and handing one to Cst. Crowley, was not sufficiently reliable for the purpose of establishing that Cst. Crowley had immediate access to an ASD when making the demand of the accused.

Decision [ 11 ] I have no hesitation in coming to the conclusion that the evidence of Cst. Booth establishes beyond a reasonable doubt that at the time of making the demand, Cst. Crowley had immediate access to an ASD. Constable Booth’s evidence was clear and concise not only in respect of his recollection of the presence of the two ASDs at the scene at the time of the demand, but generally throughout his testimony.

Indeed, at the conclusion of his testimony, I felt that I should compliment the officer on the presentation of his evidence. (I refrained from doing so at that time as I was unsure as to whether it would be appropriate to do so mid-trial but I do so now.) [ 12 ] The fact that neither officer made a note as to whether there was an ASD at the scene at the time of the demand is not surprising.

At the time of the offence, the law in Manitoba as well as other provinces appeared to be that it was irrelevant in respect of a refusal charge of this nature as to whether an ASD was on scene at the time of the demand for an immediate breath sample for the demand to be valid. That was clarified very recently with the decision of the Supreme Court of Canada which held in R. v. Breault , 2023 SCC 9 , [2023] S.C.J.

No. 9, that subject to “unusual circumstances” in order for a demand to be valid, the officer must be in a position to demand that the driver provide a sample forthwith, which means that that the officer must have immediate access to an ASD. [ 13 ] Accordingly, in the circumstances here where, prior to Breault , the presence of an ASD was arguably irrelevant, it is not of concern per se that either officer would not specifically make a note as to whether there was an ASD at the scene. However, despite the lack of a specific note to that effect, the testimony of Cst.

Crowley as to the usual practice of having an ASD present in the vehicle while on duty, as well as Cst. Booth’s very clear recollection of the events surrounding this investigation and his specific recollection of retrieving not only one, but two ASDs from the vehicle and what he did with each, satisfies me beyond any reasonable doubt that Cst. Crowley had immediate access to an ASD at the time of making the demand of the accused. Indeed, I come to that conclusion without relying on Cst.

Crowley’s evidence in respect of the “usual practice” of having an ASD present in the vehicle. [ 14 ] I note parenthetically that the decision in Breault does not address the issue of whether the Crown must satisfy the court that the ASD was in proper working order at the time of the demand. While I am satisfied on the basis of Cst. Booth’s evidence that the ASDs were in proper working order, in my opinion it is not necessary for the Crown to demonstrate here that the ASD was in proper working order where the charge is one of refusal. Nor did either counsel argue or even suggest it was.

However, while not relevant in the context of this charge, it may be relevant where the accuracy of the ASD reading is in dispute in a case where a breath sample has been provided. [ 15 ] In the result, having found that the officer making the relevant demand had immediate access to an ASD at the time of making his demand of the accused, and all other essential elements of the charge being proven or admitted, I am satisfied beyond a reasonable doubt that the Crown has proven the count as alleged in the indictment. J.