R. v. Smith, 2013 BCSC 2436

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Smith, 2013 BCSC 2436 Date: 20131128 Docket: 72397-3 Registry: Nanaimo Regina v. Joel Jason Smith Restriction on publication: pursuant to s. 539 and s. 517(1) of the Criminal Code Before: The Honourable Mr. Justice McKinnon Oral Reasons for Judgment Counsel for the Crown: J. Carpenter Counsel for the Accused: M. Munro Place and Date of Trial: Nanaimo, B.C. November 26 and 27, 2013 Place and Date of Judgment: Nanaimo, B.C.

November 28, 2013 [ 1 ] THE COURT: The accused is charged in an indictment, in Count 1, with aggravated assault of one Cody Magnusson and, in Count 2, with attempted murder of Cody Magnusson. [ 2 ] In respect to Count 1, the issue is denial/identification. If the defence is not successful then, insofar as Count 2 is concerned, it remains to determine if the evidence establishes a specific intent to kill. The Evidence [ 3 ] Cody Magnusson testified that on the evening of December 22, 2010, he took his mother's dog for a walk, leaving her residence on Selby Street in Nanaimo about 9:00 p.m.

It was dark out as he headed to a park about half a kilometre away. As he neared this park, and while walking along the road that cuts across the park, he heard a whistle. He crossed the road, walked on the grass, when "Joel popped out from behind a big tree. He was probably 10 or 12 feet away when I first saw him." [ 4 ] According to Mr. Magnusson, the accused said, "Don't worry, it will all be over soon." He claims to have recognized the voice as that of the accused, Joel Smith, with whom he was acquainted. [ 5 ] According to Mr.

Magnusson, the accused came at him, pulled a knife out of his pocket, and stabbed him. Magnusson said he flipped the accused over him and, during that process, came eye to eye with him. He identified the accused, adding that he noted a bruise under the accused's left eye when he made this eye contact. After this rollover movement, Mr. Magnusson said he was again stabbed, this time in the back. [ 6 ] Although he was bleeding profusely, he said he managed to get back to his mother's place, where he was given a towel to staunch the bleeding and was then taken to hospital. [ 7 ] Clearly Mr.

Magnusson suffered serious injuries. He deposed to receiving almost 60 staples running from the top of his head, around under his chin, which left a massive scar that is clearly visible. He also received eight stitches to the wound in his back. Today he suffers these scars and also hearing loss in his right ear and discomfort in one of his hips. The photographs filed as an exhibit are vivid testimony to the extent of these injuries. The Issue of Denial/Identification [ 8 ] Mr. Magnusson testified that he met Joel Smith about a year earlier and, although not a friend, he was someone he saw on occasion.

According to Mr. Magnusson, the accused lived in the home of a friend on Metro Drive in Nanaimo. Magnusson said that he would visit with this friend about once a month and would see Smith there on those occasions. [ 9 ] Magnusson testified that about one week prior to the assault, and while visiting his friend on Metro Drive, the accused, for no apparent reason, "started freaking out, saying he was going to kill me." Mr. Magnusson could offer no reason why the accused would

make such a threat. [ 10 ] At the time of this event, Mr. Magnusson had had some association with illicit drugs, both crystal meth and GHB. To support his purchases, he would sell these drugs, and he said that one of his customers was the accused. At the time of this assault, he says the accused owed him $100 on a drug sale. He testified that he got three or four phone calls from the accused prior to taking the dog out the evening of December 22nd. According to Mr. Magnusson, the accused wanted to buy some GHB and also wanted to repay the $100.

Although he denied that when he left the house, it was to meet the accused and sell him some GHB, he did give a statement to police in which he admitted that he was to meet the accused sometime that night and sell him 25 milligrams of GHB. [ 11 ] Mr. Magnusson also testified that he knew a person by the name of Reg Butler and believed him to be a brother of the accused. He occasionally saw Butler at the Metro Drive address. [ 12 ] When pressed in cross-examination that the assault was a drug deal gone bad, and that it was not the accused who assaulted him, Mr.

Magnusson was adamant that indeed it was. [ 13 ] Constable Phillip testified that he arrested the accused the morning of December 23rd and was present when a member of the RCMP Identification Branch took 14 photographs of the accused, depicting his physical appearance at the time of arrest.

Photo Numbers 1, 6, and 7 show a clearly visible bruise under his left eye. [ 14 ] Constable Eggen testified that he drove from Metro Drive, where the accused was arrested, to the assault area and it was a distance of 10 and a half kilometres. [ 15 ] Two witnesses for cell providers Telus and Rogers testified, but apart from identifying the two cellphones as registered to Paul Havas (he is the complainant's stepfather), and someone named Duncan McCockinhue, they proffered little else of evidentiary value. [ 16 ] One of these witnesses, Ms.

Roszmann, identified various cell towers in the Nanaimo area, but said that merely because a call bounced off one site does not necessarily mean the caller was near that tower. She said that although that is generally the case, various situations such as traffic, weather, and obstructions could cause a signal to bounce off a cell tower some distance away from the caller.

There was evidence that the phone registered to McCockinhue was used to call the complainant and it "travelled" from the cell tower near the Metro address to the tower near the assault area. [ 17 ] The accused testified and flatly denied assaulting Mr. Magnusson. He claimed that he was at all relevant times within the residence at Metro Drive with his girlfriend, Jennifer Highet. He said that neither he nor his girlfriend owned or had access to a cellphone. Apart from seeing Mr. Magnusson at the Metro address on several occasions, he said he had no association with him.

He denied either buying or selling drugs, and specifically denied ever owing money to the complainant or buying drugs from him. He also denies Mr. Magnusson's claim that some weeks before December 22nd, he threatened him with death. According to the accused, no such exchange ever took place. He admitted he had a half-brother named Reg Butler, but that Reg never came to the Metro Drive home.

According to the accused, he does not get along with Reg or his other brothers. [ 18 ] Jennifer Highet also testified, offering essentially the same version of events proffered by the accused insofar as where he was during the relevant time period. There were some differences in their evidence. The accused said that he was living at the Metro address at the time and had his personal effects there. Jennifer Highet said that he was not living there and had no personal effects in the residence, but that he did stay overnight from time to time and did so the night of December 22nd.

She claimed that she was seldom at the Metro Drive address in the weeks leading to December 22nd. [ 19 ] Ms. Highet gave a statement to police on December 23rd, and when asked if she knew who Cody Magnusson was, she replied, "No." When challenged that this was not true, she said that what she meant was that she really did not know him well, just saw him on the occasions he came to the house. It was not a convincing explanation. Clearly she lied to police when asked if she knew Cody Magnusson. [ 20 ] Counsel for the accused submits that on the basis of all the evidence, the ratio of R. v.

W.(D.) applies and that the accused must be acquitted on both counts. W.(D.) is a standard instruction given juries where the accused testifies and denies responsibility for an alleged crime. If a trier of fact believes the accused, then of course he/she must acquit. If the trier does not know whom to believe, then an acquittal must also follow.

Finally, even if the trier does not believe the accused's version, he/she must still look to all the evidence to determine whether there is reasonable doubt on the issue. [ 21 ] I did not believe the accused's version of events, nor did I believe the evidence of Jennifer Highet. I did believe the evidence of Cody Magnusson. [ 22 ] I accept that, for reasons not known to me, the accused harboured ill will toward the complainant, as evidenced by his threat some weeks prior to the assault. It may have been over drug issues; I simply do not know.

I also accept that on the evening of December 22nd, the accused did phone Mr. Magnusson and there were discussions about a drug sale later that night. [ 23 ] As indicated, the defence was simply, "I was not there. I did not do this act." Having rejected that alibi defence, I turn to whether Mr. Magnusson could identify the accused. Mr. Magnusson and the accused knew each other. Although they were not friends, Mr. Magnusson recognized the accused's voice and said that he immediately realized it was the accused who was attacking him. It was, in my view, quite telling that Mr.

Magnusson was able to identify a bruise under the accused's right eye as the attack was taking place. Police photographs taken the next day show the accused did have such a mark. [ 24 ] In my view, the only reasonable conclusion to draw from this evidence is that the accused was properly identified as the assailant. I therefore find the accused guilty on Count 1, the aggravated assault of Cody Magnusson. [ 25 ] I did not hear submissions in respect to Count 2, the allegation of attempted murder, which requires proof of a specific intent to kill.

If Crown desires, it may make submissions on that count, although I am bound to say that such an intent seems to be missing.

[ 26 ] MR. CARPENTER: The reason I didn't make the submissions, Your Honour, is in my view -- I discussed this with Mr. Munro, in my view, the utterance a week earlier and the utterance just prior to the assault itself is not sufficient to prove the criminal burden the intent to kill. [ 27 ] THE COURT: All right, so I will record an acquittal on Count 2 then, so I will find the accused not guilty on Count 2. “McKinnon J.”