Provincial Court

PROVINCIAL COURT OF NOVA SCOTIA

Citation: R v Brown-Beals, 2025 NSPC 22

Date: 20250818

Docket:  8890987, 8890990, 8890991,

8890993, 8890994, 8890995, 8890997

Registry: Port Hawkesbury

Between:

His Majesty the King

 

v

Stephen Derez Brown-Beals

 

 

Judge:	The Honourable Judge Del W Atwood
Heard:	May 13, June 23, August 18, 2025, in Port Hawkesbury, Nova Scotia
Charge:	Sections  85, 87, 91, 94, 129, 267, 320.14 Criminal Code [Code]
Counsel:	Peter Harrison for the Nova Scotia Public Prosecution Service Robyn Fougere for Stephen Derez Brown-Beals

 

 

 

 

By the Court:

[1]             Stephen Derez Brown-Beals was charged initially in a 14-count information (information number 884130; cases 8890984-8890997) with a number of conveyance-, weapons-, and violence-related offences under the Code. 

[2]             The prosecution withdrew four counts (cases 8890984, 8890988, 8890992, 8890996).

[3]             Mr Brown-Beals pleaded guilty to three:

•                 8890985, flight from police, § 320.17;

•                 8890986, dangerous operation of a conveyance, § 320.13; and

•                 8890989, obstruction, ¶ 129(a).

[4]             There remain seven counts for trial:

•                 8890987: impaired operation of a conveyance, ¶ 320.14(1)(a);

•                 8890990: pointing a firearm at Hannah Dugas [Ms Dugas], § 87;

•                 8890991: use of a firearm while committing the offence of obstruction, ¶ 85(1)(a);

•                 8890993: unlicensed possession of a firearm, § 91(2);

•                 8890994: occupying a motor vehicle knowing that there was firearm in it, § 94(1);

•                 8890995: unlawful confinement of Ms Dugas, § 279(2); and,

•                 8890997: assaulting Ms Dugas with a weapon, ¶ 267(a).

[5]             All of the offences are alleged to have occurred 2 August 2024 in the community of St Peters in Cape Breton.

[6]             The prosecution proceeded indictably; Mr Brown-Beals elected to have his trial in Provincial Court and pleaded not guilty.

[7]             This is Mr Brown-Beals’s second trial on these charges.  The first resulted in a mistrial [the “first trial”].  The reasons for the mistrial were not placed before the Court.

[8]             There are no Charter applications before the Court.

[9]             There is no controversy about the elements of the offence that are being tried.  The issue is whether the prosecution has proven beyond a reasonable doubt that Mr Brown-Beals did what he is alleged to have done.

[10]         The theory of the prosecution is that, on the evening of  2 August 2024, an alcohol-impaired Mr Brown-Beals tried to dodge getting stopped behind the wheel at a police checkpoint by forcing Ms Dugas at gunpoint into switching seats with him.  After Ms Dugas got arrested at the checkpoint, Mr Brown-Beals quickly slipped back into the driver’s seat and sped off, evading police pursuit.

[11]         The theory of the defence is that the case for the prosecution rests almost entirely on the credibility and reliability of the evidence of Ms Dugas.  Defence counsel argues that Ms Dugas should not be believed: her behaviour and conduct when taken into police custody were not consistent with someone who had just been confronted with a mortal threat; her statement to police omitted a material detail that a credible victim would not have forgotten; and Ms Dugas was incentivized to implicate Mr Brown-Beals criminally in order to escape criminal liability, herself.  Without Ms Dugas’s evidence, there remains insufficient evidence to support any of the contested charges.

[12]         For the reasons that follow, the Court harbours a substantial and reasonable doubt about the testimonial credibility of Ms Dugas.  As the case for the prosecution rests almost entirely on her evidence, the Court finds that the prosecution has failed to prove the essential elements of the offences before the Court beyond a reasonable doubt.  The Court finds Mr Brown Beals not guilty; this finding applies to the trial charges only.

Inventory of evidence--witnesses

[13]         The prosecution called three witnesses.  One of them—Cst Donald Shaw—was later recalled by defence counsel to address an issue that came up during the cross-examination of Ms Dugas; I considered this as a continuation of the cross-examination of Cst Shaw.  Other than that, the defence called no evidence.

Inventory of evidence—exhibits

Multiple-count trials

[14]         In a trial involving multiple counts, the court must guard against propensity or bad-conduct reasoning.  These terms describe a type of heuristic that would have a trier treat proof of one count as supporting convictions for other counts.  The need for vigilance is elevated in this case, as Mr Brown-Beals has pleaded guilty to dangerous driving, flight from police, and obstruction, charges that form part of the 2 August 2024 fact matrix.

[15]         As the prosecution has not sought count-to-count reception of similar-fact evidence, the court must treat each count as a separate indictment: R v RTH, 2007 NSCA 18 at ¶ 93; R v DR, 2021 ONCA 460 at ¶ 25.  Nevertheless, the court may apply credibility findings across all the counts, provided that the court explain why it is doing so: R v PEC, 2005 SCC 19 at ¶ 1; R v RAG, 2008 ONCA 829 at ¶ 13; R v Wright, 2019 BCCA 234 at ¶ 57-58; R v Barker, 2023 NSPC 18 at ¶ 97-110.

Cross-examination on prior statements

[16]           A statement made by a witness prior to trial may be the subject of cross-examination under either § 10 or 11 of the Canada Evidence Act [CEA]. 

[17]           Section 10 permits cross-examination on any written or recorded statement “relative to the subject matter of the case”; note that the statement need not be inconsistent with the testimony of the witness.  However, the statement must have been written or recorded.

[18]           Section 11 allows for cross-examination on any statement “inconsistent with . . . [the] present testimony” of the witness.  The statement need not have been written or recorded.

[19]           Neither provision is a memory-refreshing mechanism, and so not constrained by the requirements of, say, R v Fliss, 2002 SCC 16; an opponent’s witness does not have to acknowledge being in need of memory refreshing as a condition precedent to counsel pursuing a § 10 or 11 CEA cross-examination.  

[20]           Should a witness admit making an earlier statement inconsistent with in-court testimony, the earlier statement does not become proof of the truth of what was said unless the witness should go on to adopt the statement: R v Livermore, [1995] 4 SCR 123 at ¶ 54; R v Mauger, 2018 NSCA 41 at ¶ 29.   A statement is considered to have been adopted only if the witness (1) admits making the statement, and (2) acknowledges its truth based on present memory: R v Layne, 2024 ONCA 435 at ¶ 51; R v Abdulle, 2020 ONCA 106 at ¶ 136; leave to appeal to SCC refused, [2020] SCCA No 156.  If adopted, the prior statement gets incorporated into the testimony of the witness; if unadopted, the statement may be used to assess credibility only. 

[21]         Section 10 permits a judge to require counsel conducting a cross-examination to produce a statement when it is being used to contradict the testimony of a witness.  However, regardless of whether § 10 or 11 of the CEA might govern, when a prior statement is used for cross-examination purposes, the statement is not put in as an exhibit, unless it has been the subject of extensive questioning: R v Rowbotham, [1988] OJ No 271 at ¶ 118-119; R v Rodney, 1988 CarswellBC 448 at ¶ 34 (CA), affirmed on unrelated grounds [1990] 2 SCR 687.  The reason for not exhibiting a prior statement used in cross-examination is this: evidence is admissible if it is informative, relevant, material, not subject to an exclusionary rule, and of sufficient probative value as not to be outweighed by prejudicial effect.  When a statement is the subject matter of cross-examination as to credit, only that portion of the statement as is used for cross-examination purposes meets this test for admissibility (and even that proposition is qualified, as the probative value of an unadopted statement is not clear; further, if a prior statement should be adopted by the witness, then the testimony of the witness would render the prior statement superfluous).  In such a case, receiving an entire statement as an exhibit—when only a small fragment of it would be pertinent legally, and even then, for a limited purpose only—would be inefficient and render the statement prone to misuse.  But there will be exceptions, as will be discussed below.

[22]         Cross examination of an opponent’s witness on the contents of a prior statement requires precision.  When the prior statement that is the subject of an alleged inconsistency is in writing, has been transcribed from a sound recording, or is accessible in a digital or analog audio format, word-for-word precision is required; counsel must be prepared to quote exactly what the witness is supposed to have said previously. 

[23]         Cst Shaw was cross-examined extensively about the interrogation he conducted with Ms Dugas; the interrogation was recorded in a digital-audio format, and later transcribed.  With the consent of counsel, a thumb drive with the audio file was entered as Exhibit No 3. 

[24]         Cst Shaw’s part of the interrogation is able to be received as non-hearsay; the truth of his statements was not a live issue.  What was relevant was what he said to Ms Dugas that led up to her implicating Mr Brown-Beals and whether, as asserted by defence, it might have induced her to fabricate her account. 

[25]         Many of the questions asked of Cst Shaw on cross about his interrogation of Ms Dugas were quite lengthy; I had some difficulty understanding what defence counsel was alleging the officer had said to Ms Dugas.

[26]         The most effective cross-examination questions are those that are economical, succinct and to the point.  Confusing questions lead to confusing answers.  Compound questions asked on cross are also problematic: if questions are embedded in other questions, a trier will be left in doubt about the meaning of an affirmative or negative answer given by a witness.

[27]         To try to resolve some of the confusion about what Cst Shaw had said to Ms Dugas during his interrogation of her, counsel agreed that the digital audio recording be entered as a consent exhibit—Exhibit No 3.  I audited only those portions of the recording that were the subject of defence cross-examination.  In support of that approach, I relied on 1162740 Ontario Limited v Pingue, 2017 ONCA 52 at ¶ 36; and on R v Betker, 1997 CanLII 1902, [1997] O.J. No. 1578, 115 CCC (3d) 421 (CA), at 430 CCC (leave to appeal refused, [1997] SCCA No 461).  Having done so, I am satisfied that the questions put to Cst Shaw on cross quoted his part of the interrogation accurately.  However, this does not alter the fact that I did not always understand the questions put on cross to Cst Shaw and Ms Dugas.

Avoiding implicit bias

[28]         Mr Brown-Beals is Black, and a member of the African-Nova Scotian community.

[29]         Persons with this background have frequently faced profound structural disadvantages in the Canadian criminal justice system, simply because of their ancestry and personal histories.  Courts throughout this country have taken judicial notice of anti-Black racism in Canada; that the criminal-justice system is implicated in it historically underlies the development of the Impact of Race and Culture Assessment sentencing instrument.  This is not a sentencing hearing.  However, the Court must be alive to the historical truth of the over-policing of Black communities in Nova Scotia.

[30]           The Court must assess the evidence presented in this trial in a way that does not implicate biased or stereotypical reasoning based on race: see R v Markos, 2025 NSPC 21 at ¶ 28-31; R v Muirhead, 2025 NSPC 18 at ¶ 57-59.

[31]         The risk of racial profiling by police is a legitimate basis for inquiry by the defence; however, the issue was not pursued, and there is no evidence of it having occurred in this case.

Reasonable doubt and the credibility of Ms Dugas

[32]         The charges that are before the Court for trial hinge on the credibility and reliability of Hannah Dugas.  She was the only witness to testify about what happened inside the Lincoln with Mr Brown-Beals as they approached the checkpoint that was being run by Csts Shaw and MacDonald.

[33]         A recent unreported decision rendered by my colleague Hatt J in R v Izzard (24 June 2025), Pictou 8739112-8739163 (NSPC) presents a useful reminder of the crucial role that credibility assessments play in criminal trials.  Reasonable doubt applies to credibility assessments, such that if the evidence led by the prosecution does not rise to the beyond-a-reasonable-doubt level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved, or, as in this case, because the accused elected not to call evidence: see also R v Kruk, 2024 SCC 7 at ¶ 61-62.

[34]         In my view, there are many credibility questions which weight against the testimony of Ms Dugas.

Ms Dugas not prosecuted

[35]         First of all, there is at least the appearance that her cooperation with the state involved some form of immunity-from-prosecution arrangement.  Cst Shaw testified to it on cross-examination:

MS. FOUGERE:     ...isn't it true that Ms. Dugas was never actually charged with — or never actually charged or prosecuted for impaired driving because

A.        She was not prosecuted, she was charged.

Q.        Okay.  But that charge was withdrawn because she agreed to provide evidence against Mr. Brown-Beals, correct?

A.        No.

[36]         Cst Shaw was questioned further:

MS. FOUGERE:     Okay.  Okay.  But so she was never prosecuted?

A.        She was not.

Q.        Okay.  And she was never presented with a notice to appear in court at all?

A.        Not at all, no.

[37]         More followed:

A.        I believe that she was given all the documents for the impaired while she was there 'cause the determination had not been made at that point.

Q.        Sorry, what's — I'm not, I'm not certain what — if I understand what determination you mean.  Oh, determination not to proceed?

A.        What?

Q.        So you made the determination not to proceed with the impaired charge against her?

A.        Yes, she had no idea at that point that I was going to — or I didn't even know that I was going to drop the impaired charge.

[38]         Ms Dugas confirmed on cross-examination that she was never prosecuted for an impaired charge:

MS. FOUGERE:    Ms. Dugas, you'll agree with me that you were never prosecuted for that impaired charge, correct?

A.        What does that mean?

Q.        You never went to court to deal with that charge?

A.        Right.

[39]         The evidence placed before the Court from Cst Shaw established that Ms Dugas operated a conveyance on 2 August 2024 in the community of St Peter’s Nova Scotia.  The evidence established that Ms Dugas did so with a prohibited blood-alcohol concentration in her body.  She was certainly chargeable—but was not charged.

[40]         This would appear to suggest circumstantially that there was some form of immunity-from-prosecution arrangement with Ms Dugas in place.  It does not necessarily follow that immunity was exchanged for testimony; it might have been simply a charitable decision based on the belief that Ms Dugas had been a victim of violence, and coerced by Mr Brown-Beals into driving.  However, it is, in my view, a matter that might usefully have been clarified by the prosecution at the outset of the trial.  That best practice is inherent in the special measures that prosecutors are obligated to apply when dealing with immunity situations: see Nova Scotia, Public Prosecution Service, Crown Attorney Manual: Prosecution and Administrative Policies for the PPS: Immunity from prosecution, DPP Policy issued 23 Nov 2015, online at: https://novascotia.ca/pps/publications/ca_manual/ProsecutionPolicies/Immunity_from_Prosecution.pdf.

[41]         That this matter was not clarified is not the fault of Ms Dugas.  However, the evidence that she was never charged criminally adds complexity to the assessment of her credibility.

Prolonged investigative detention of Ms Dugas

[42]         Even absent an immunity agreement, Cst Shaw’s treatment of Ms Dugas strongly incentivized her giving an inculpatory statement against Mr Brown-Beals.

[43]         The evidence establishes clearly that Cst Shaw embarked on charging Ms Dugas with a ¶ 320.14(1)(b) over-80 offence.  He arrested her after she blew a “FAIL” during roadside screening.  He made an evidentiary breath demand of her.  He read her a right-to-counsel notification.  He took her to the St. Peter’s detachment and obtained two breath samples from her, the last one at 00:59 hrs on 3 August 2024.  Cst Shaw could have released her then on process: he had nailed down her identity, he had collected all the evidence about her charge that he needed, and there was no risk of her continuing to commit an offence.  All the preconditions for a release from custody following an arrest without warrant were in place.

[44]         Instead, Cst Shaw took Ms Dugas to the Port Hawkesbury detachment and lodged her in cells.

[45]         Cst Shaw then went off duty.

[46]         Ms Dugas remained in Port Hawkesbury cells until Cst Shaw returned at 10:30hrs the morning of 23 August 2024.

[47]         It is clear from Cst Shaw’s cross-examination evidence that he considered Ms Dugas detained:

Q. . . . .

She was a detainee at this point.  You'll agree with me, correct?

A.                Yes.

[48]         Ms Dugas confirmed on cross that she felt she was being detained:

Q.        So you still were under the impression that you were detained?

A.        Yes.

Q.        And that you were not free to leave, correct?

A.        Yes.

[49]         Ms Dugas was returned to cells by Cst Shaw twice—if not three times, his evidence on cross was unclear—when she was not forthcoming providing the information Cst Shaw wanted.

[50]         Mr Brown-Beals does not have standing to litigate Ms Dugas’ Charter rights.  Nevertheless, it appears to the Court that the circumstances under which Ms Dugas provided her originating information to police—originating, in that it was what led to Mr Brown-Beals being charged with the counts that are controversial in this trial—had the appearance of being oppressive. 

[51]         Ms Dugas was detained.  She was not being detained on her own charges—charges that were never laid for reasons that remain unclear.  Cst Shaw confirmed on cross that Ms Dugas, herself, was no longer under investigation once the over-80 piece got wrapped up.  Rather, she was detained to advance an investigation against Mr Brown-Beals.

[52]         It was an investigative detention.

[53]         Investigative detentions are subject to strict constitutional limitations: they must be of brief duration: R v Mann, 2004 SCC 52 at ¶ 22.  Keeping Ms Dugas in cells, from the time Cst Shaw went off shift until he returned later in the day, does not demonstrate a compliance with the brief-duration limitation.

[54]         Cst Shaw initially described the circumstances of Ms Dugas’ detention by stating that Ms Dugas was not in cells; he then segued to stating that, while she was in a cell, she wasn’t in a locked cell, as if it might be considered the equivalent of a waiting room.

[55]         The evidence is clear.  Ms Dugas was lodged in cells for an extended period of time after the investigation against her was concluded.  Cst Shaw brought her from cells to take a statement from her; I draw what I consider to be the reasonable inference that this was done in an interview room.  When Ms Dugas did not deliver to Cst Shaw what he wanted from her, he informed her that she would be going back to cells.

[56]         Ultimately, Ms Dugas gave a statement to Cst Shaw implicating Mr Brown-Beals in the offences for which he is being tried.

[57]         When statements are obtained by police from witnesses in circumstances such as this, concerns about credibility and reliability will arise.  Is the witness providing a truthful account—or, is the witness simply delivering a get-out-of-jail fiction that will please the interrogator?

[58]         Adding to these circumstances were the hints that Cst Shaw acknowledged offering to Ms Dugas that a statement—and, by that, he clearly meant a statement implicating Mr Brown-Beals—would make things go better for her.  This was a prospect offered to Ms Dugas that, indeed, appears to have been borne out by the fact that she was never prosecuted for an over-80 offence. 

[59]         And so there was a strong incentive for Ms Dugas to implicate Mr Brown-Beals.  It offered her the prize of securing her liberty and, as she indirectly acknowledged on cross, protecting her job.  To be sure, implicating Mr Brown-Beals did not necessarily mean Ms Dugas fabricated a criminal complaint against him.  However, the risk of her doing so is not imaginary.  If her account was fabricated, Ms Dugas would have been locked into it, as a recantation—either before or during the trial—would have revived the risk of being charged criminally and losing her employment. 

[60]         There are other credibility questions that arise from Ms Dugas’ conduct when she and Mr Brown-Beals were first stopped. 

Ms Dugas’s conduct when first detained

[61]         When stopped and questioned by Cst Shaw, Ms Dugas denied drinking, which was not truthful.

[62]         After being removed from behind the wheel and taken back to Cst Shaw’s cruiser, Ms Dugas asked to go back to the Lincoln to get her purse.  This does not seem consistent with Ms Dugas’ evidence on cross that she wanted to get caught at the checkpoint so that she could “get the fuck out of there.”

[63]         Cst Shaw described Ms Dugas as argumentative; she did not present to him as fearful.

[64]         This sort of behaviour does not project the level of mortal fright  one would reasonably expect to be exhibited by a person who has just escaped from a high-risk-of-lethality experience.  The prosecutor makes the point that there is no one way for victims of violence to react.  That might be so.  However, judges are permitted to rely on logic, reason and common sense in assessing witness credibility: R v ARD, 2017 ABCA 237 at ¶ 8-9, aff’d 2018 SCC 6; cited with approval in a minority concurring opinion in R v Kruk, 2024 SCC 7  at ¶ 186.  While different people might react differently to  traumatic situations, this surely cannot prohibit a court from drawing reasonable credibility inferences from the proven way a person did react.  When Ms Dugas was dealing with Cst Shaw roadside, she did not appear concerned—rather, she was confrontational.  That is not the reaction of someone who had just been terrorized with a handgun.

A late-breaking revelation

[65]         And then there is Ms Dugas’ testimony about a shotgun in the back seat, on the floor.  That evidence came out in Ms Dugas’ direct examination.  She did not mention anything about a shotgun in her statement to Cst Shaw.  Ms Dugas sought to explain away that oversight by stating on cross that she did not consider the shotgun to have been a danger to her at that time she first saw it.  Although defence counsel erroneously quoted Ms Dugas as having seen a “sawed-off” shotgun, the point is nevertheless well made.  This was a material  omission from her original account given to Cst Shaw.  While I accept that even truthful witnesses can forget to mention important details when interviewed by police using the one-and-done-statement-taking method, this is neither a neutral nor negligible lapse, and I must factor it into my assessment of Ms Dugas’ credibility.

R v Vetrovec

[66]         I must consider as well the fact that Ms Dugas was a principal to the offence of operating a conveyance while impaired.  

[67]         She was also either a principal or a party to the offence of obstruction by switching seats with Mr Brown-Beals.

[68]         There should be no controversy in this.

[69]          Ms Dugas’ acts might be taken as constituting disreputable conduct. 

[70]         It is true that Ms Dugas said that she made the switch and drove the Lincoln because she was coerced; however, that part is controversial.

[71]         I believe that this is a circumstance when the Court ought to direct itself in accordance with the unsavory-witness guidance in R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811; the Court should look for other independent evidence which tends to confirm the material parts of Ms Dugas’ evidence.  This is particularly important in this trial, as Ms Dugas’ evidence is essential to the case for the prosecution: R v Khela, 2009 SCC 4 at ¶ 35.

[72]         Mr Brown-Beals was seen in the Lincoln with Mr Dugas, and then fled from police afterward; Csts Shaw and MacDonald witnessed this.  However, their evidence does not serve to confirm in any way that there were firearms in the Lincoln or that Mr Brown-Beals pointed one at Ms Dugas.  In fact, the officers testified that, in approaching the Lincoln in a safety-conscious and observant manner,  neither of them could see any firearms inside the passenger compartment. 

[73]         Based on the combined effect of these factors, the Court is left in a state of real and substantial doubt about Ms Dugas’ credibility.  I am simply unable to accept her evidence about Mr Brown-Beals confining her, pointing a handgun at her, or having any firearms in the Lincoln at all.

Flight as consciousness of guilt

[74]         The prosecution asserted in closing that Mr Brown-Beals’s flight from police could be treated as post-offence-consciousness-of-guilt evidence.  In my view, Mr Brown-Beals’s sudden flight is a no-probative-value circumstance.  This is because, on 2 August 2024, he was, as came out during the trial, subject to house arrest under the terms of a conditional-sentence order [CSO].  When post-offence conduct—such as flight from police—is equally attributable to two or more offences, a trier properly treats the conduct as having no probative value: R v Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 SCR 129 at 145-146.  In this case, Mr Brown-Beals’s sudden departure was as consistent with not wanting to get caught being AWOL while on house arrest, as it was with escaping with firearms after having menaced Ms Dugas.

Evidence of impairment

[75]         With respect to the impaired-operation charge, the only evidence left before the Court, once Ms Dugas’s doubtful testimony is removed from the inventory, is the testimony of Cst Shaw.

[76]         Cst Shaw testified that Mr Brown-Beals told him roadside that he had consumed “four to five beer”.  This statement by an accused to a person in authority was received without an objection from the defence.  The prosecution asserted in closing that this represented a waiver of a voluntariness voir dire.  I do not agree.  A voluntariness voir dire is always necessary unless defence has expressly waived it; a failure to object is not a waiver: R v Park, CanLII 56 (SCC), [1981] 2 SCR 64 at 69 et seq; R v Erven, 1978 CanLII 19, [1979] 1 SCR 926 at 931 [Erven].  Even apparently volunteered statements given to a person in authority are admissible only after a voluntariness voir dire: Erven at 935.[1]

[77]         However, upon further review of the trial record, I find there to have been an express waiver by defence.  This occurred when defence counsel cross-examined Cst Shaw on his roadside interaction with Mr Brown-Beals:

Q.        Okay.  And when you mentioned that you could smell alcohol coming from the inside of the vehicle, you testified that Mr. Brown-Beals had interjected and said that he had — I believe your evidence today was that he had told you he had had — sorry.  You testified that the passenger spoke up and said that you had four — that he had four or five beers?

A.        Yes.

Q.        Okay.  I'm going to suggest to you again, at the last trial, you testified that Mr. Brown-Beals had told you that he had drank three or four beers.  Would you agree with that?

A.        Yes.

Q.        Okay.  And he did not — so did you understood — you understood — would you agree with me that you understood at the time that Mr. Brown-Beals was trying to provide an explanation as to why there was a smell of alcohol in the vehicle?

A.        Yes.

Q.        Okay.  And Mr. Brown-Beals never provided a timeline with respect to when he may have drank those beers?  Assuming that he had drank them and wasn't just trying to — I guess —

A.        I don't, I don't remember.  Not, not to the best of my knowledge he didn't say when.

Q.        No timeline.  Okay.

[78]         Defence counsel sought admission of the presumptively inadmissible statements made by Mr Brown-Beals to Cst Shaw about his alcohol consumption in order to defend against the impaired charge.  In my view, this was an informed, tactical and express choice to waive the requirement of a voir dire.

[79]         The Court takes that point that was being made by defence counsel during that part of the cross-examination of Cst Shaw: There is no evidence before the Court pinpointing when Mr Brown-Beals consumed the beer he told Cst Shaw he had drunk.  The discarded beer can (Exhibit No 2)—assuming for the sake of argument that Mr Beals had thrown it from the Lincoln—is not informative of recency of consumption.

[80]         Excising Ms Dugas’s evidence from the inventory of admissible evidence, the Court is left with Cst Shaw’s evidence that Mr Brown-Beals was “noticeably impaired”, that “his speech was slurred” and he had consumed beer at some undetermined earlier time; Cst Shaw did not respond to the prosecutor’s prompting to describe other “indicia of impairment the passenger was exhibiting”, as well as “any other conditions, impairment signs, the speech and the odor.”

[81]         Slurred speech may be received as some evidence of impairment of a person’s ability to operate a conveyance, but not necessarily as a proof of it in the absence of other indicia of impairment: I find R v Landes, 1997 CanLII 11314 (SKQB) persuasive on this point.  A general reference by an investigator to a motorist exhibiting slurred speech at roadside is not sufficient for a trier to make an independent assessment of impairment: I find R v Lozanovski, 2005 ONCJ 112 at ¶ 33 persuasive on this point.

[82]         In a ¶ 320.14(1)(a) prosecution, the evidence need not establish that the person being tried was substantially impaired; proof of even slight impairment by alcohol of the ability to operate a conveyance is sufficient: R v Stellato, 1994 CanLII 94 (SCC), [1994] 2 SCR 478, aff’g  1993 CanLII 3375,  12 OR (3d) 90 (ONCA).  However, there is a qualitative difference between evidence of slight impairment, and slight evidence of impairment.  The Court believes that the evidence of impairment in this case is sparce and slight.

Findings of fact

[83]         Having found the evidence of Ms Dugas not credible and the evidence of Cst Shaw on the issue of alcohol impairment inconclusive, the Court would make the following pertinent findings of fact:

•                 On 2 August 2024, Mr Brown-Beals was operating the Lincoln in the vicinity of St Peter’s Nova Scotia.  Ms Dugas was a passenger.

•                 As Mr Brown-Beals approached a checkpoint being operated by Csts Shaw and MacDonald, he pulled off the highway and into a parking lot adjacent to the RCMP detachment.

•                 Mr Brown-Beals and Ms Dugas traded places; Mr Brown-Beals did not want to be behind the wheel of the Lincoln at the checkpoint as he was concerned about criminal liability; he was breaching his CSO house-arrest condition.

•                 Ms Dugas resumed driving toward the checkpoint, but then turned around and headed in the opposite direction.

•                 Police gave pursuit, and Ms Dugas pulled over a short distance later.

•                 Cst Shaw had a brief conversation with Ms Dugas and Mr Brown-Beals.  Cst Shaw observed Mr Brown-Beals’s speech as slurred, and Mr Brown-Beals told him he had consumed a quantity of beer.

•                 Cst Shaw had Ms Dugas exit the Lincoln; he allowed Ms Dugas to retrieve her purse.

•                 Mr Brown-Beals then entered the driver’s seat of the Lincoln and sped off in a manner that was dangerous to the public.  He evaded police pursuit.

•                 The Court is unable to make findings of fact regarding whether Mr Brown-Beals had firearms inside the Lincoln, whether he threatened Ms Dugas with them, whether he kept Ms Dugas confined, or whether his ability to operate the Lincoln was impaired to any degree by alcohol.

[84]         Based on these findings, the Court records acquittals in relation to cases: 8890987, 8890990, 8890991, 8890993, 8890994, 8890995, and 8890997.

[85]         The Court will schedule a sentencing hearing for the matters to which Mr Brown-Beals has pleaded guilty.

Atwood, D., JPC