R. v. Mathis Date:, 2018 BCPC 18

Citation: R. v. Mathis Date: 20180108 2018 BCPC 18 File No: 23604-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARYL MATHIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: C. Hawes Counsel for the Defendant: N. Jacob Place of Hearing: Salmon Arm , B.C. Date of Hearing: December 11, 12, 2017 Date of Judgment: January 8, 2018

[ 1 ] Mr. Mathis is charged with assault causing bodily harm on Gunnar Keuris. The charge arises out of circumstances that occurred at a baseball tournament dance in Sorrento, B.C. on June 26, 2016. Overview: [ 2 ] On Saturday, June 26, 2016, the complainant’s team was hosting a dance at a community hall for the teams participating in an annual slow pitch tournament.

A physical altercation occurred near the end of the dance between the accused and the complainant resulting in the complainant suffering a fractured orbital bone. [ 3 ] The position of the Crown is that the accused, fuelled by alcohol and a misguided notion of protecting a friend, sucker punched the complainant and, while the complainant was down on his back either dazed or unconscious, punched him again two or three more times. [ 4 ] The position of the defence is that there was no sucker punch and the accused did not punch the complainant while the complainant was on the ground, and that the accused was acting in self-defence, or, alternatively, was engaged in a consensual fight without any intent to cause serious bodily harm. [ 5 ] That the complainant suffered bodily harm is admitted by the defence.

The Evidence: [ 6 ] At approximately 11:30 p.m. which was about the time of ‘last call’ for ordering drinks, the complainant’s wife, Cheryl Keuris, who was the leader of the team hosting the dance, noticed persons discarding beer cans and empty cups on the grounds associated with the community hall. This was cause for concern because the host team was responsible for cleaning up the hall and the grounds prior to the church services that were scheduled in the building for the following morning. [ 7 ] Ms.

Keuris came to the conclusion the persons responsible were primarily the members of a particular team, and consequently she spoke to a person named Harley Siemens, who she understood to be that team’s captain. The level of frustration was evident in her tone and choice of words, and as a result Harley became visibly upset. [ 8 ] This caused Harley’s father, Dean Siemens, to become concerned and he began yelling at the complainant’s wife telling her to stop yelling at his adult son. This caused Cheryl Keuris’ husband, the complainant Gunnar Keuris, to become concerned and he walked over and stood beside his wife.

I pause to note that it is not unreasonable to conclude that after a day of playing baseball and an evening of dancing and imbibing to varying degrees, that the dispute resolution skills of the good people involved in this incident may have been at a low ebb. [ 9 ] Dean Siemens asked Gunnar Keuris “What are you looking at?” He gave Mr. Keuris a push on the chest and Mr. Keuris did the same back to Mr. Siemens. Cheryl Keuris and perhaps one or two others quickly intervened and calmed the two men down, to the point where they shook hands and walked away from each other.

By all accounts the brief unpleasantness was over. [ 10 ] However, word of Harley being made upset made its way to the accused. The only version of how this occurred came from the accused, who said Harley's father, Dean, tapped him on the shoulder while he was dancing and told him he thought Harley was in trouble. [ 11 ] The accused, Mr. Mathis, followed Dean Siemens outside and noticed Harley was very upset. Mr. Mathis says he tried talking to Harley about what had upset him but could not get a clear answer. Mr. Mathis says he concluded that Mr. Keuris must have had something to do with Harley being upset.

This conclusion was based primarily on the complainant’s body language and demeanour. [ 12 ] The testimonial versions from the witnesses of what followed, leading up to the physical altercation between the complainant and the accused, are somewhat varied. [ 13 ] The Crown called as witnesses the complainant, four of the complainant's teammates, and the complainant's wife.

The defence called the accused to testify and one other witness. [ 14 ] As is often seen in these types of cases where an incident occurs at the end of an evening in a crowded environment where there has been various amounts of alcohol consumed, and the events occurred 18 months previous to the date of testimony, there are some variations in the recollections of the witnesses.

That said, I find that all of the people called as witnesses were honest, respectable, and generally very nice people who were doing their best to recall an incident that occurred in June 2016. [ 15 ] I also find that although there was likely some residual hard feelings resulting from the senselessness of an incident that resulted in the complainant's serious injury, none of the witnesses presented as motivated by revenge or, as the saying goes, as having an axe to grind. [ 16 ] Because this case turns on the credibility and, perhaps more accurately, the reliability, of the testimony of the complainant, accused and other witnesses, I will provide a more detailed analysis of each witnesses testimony than would otherwise normally be required.

Testimony of the complainant, Gunnar Keuris: [ 17 ] Mr. Keuris says that the brief shoving match between himself and Harley's father quickly ended. Although he was initially angry, he quickly calmed down and was about to go to the dance floor for a ‘team dance’ when the accused approached him and asked him if ‘He was ready to go?’

[ 18 ] The complainant interpreted this as the accused asking the complainant for a fight. The complainant says he responded with words to the effect that he had to clean up first after the dance, but that if the accused was still around after that then they could fight. The complainant emphasizes that he said this in jest with an intent to calm the accused down.

He also says he did not expect the accused would bother to wait around that long, and would leave. [ 19 ] The complainant was not clear in his testimony as to whether the initial conversation took place just inside the door or while they were still outside, and stated “I am still fuzzy about what occurred that night.” [ 20 ] Although on direct examination the complainant said that after he was hit the one time from behind he does not recall anything until he woke up lying on the floor, on cross-examination he agreed that he did not remember getting hit at all, and that all he recalls is the accused asking him for fight then walking to the dance floor. [ 21 ] When asked on cross-examination whether it was possible there was an interaction between he and the accused in the dance hall that he does not recall, Mr.

Keuris said “I don't think so.” Testimony of the complainant's wife, Cheryl Keuris: [ 22 ] Ms. Keuris confirms the events set out above leading up to the pushing match between her husband and Dean Siemens. She says she was the only person that got in between the two to break it up. She says that teammate Penny Gray was not in the immediate vicinity during this altercation or involved in the separation of the two men. [ 23 ] She testified that after the breakup of the pushing match, she went inside, then came outside to bring her husband in for a team dance.

She says as they were walking towards the bar he was right behind her. However she says when she was at the far side of the bar she turned around and he was gone and she assumed he was picking up garbage. She continued on to the dance floor and danced for a brief time until someone came to get her telling her that her husband was bleeding. [ 24 ] She went back towards the bar and saw her husband with a napkin held to his bleeding face. She helped him to a table. [ 25 ] Ms.

Keuris did not see any of the altercation, nor was she in the vicinity of her husband to witness their verbal exchange prior to the incident. [ 26 ] Although Ms. Keuris testified that she was 100% sure that her husband was not intoxicated, she did concede during cross examination that in her statement to the police she said that her husband was probably drunk because it was a beer league. She also confirmed her statement to the police that it was her opinion the accused was very intoxicated and that teammate Adam Honaizer had consumed two beers. Testimony of Penny Gray: [ 27 ] Ms.

Gray confirmed the pushing between Dean Siemens and the complainant. She says that she was “right there in the midst of it all.” I pause to note that this is contrary to Cheryl Keuris’ recollection, who testified that Ms. Gray was not in the immediate vicinity. [ 28 ] Ms. Gray also testified on cross examination that although she was present for the whole interaction between Dean Siemens and the complainant, she saw Dean push the complainant but did not see the complainant push Dean, and testified that she would have seen that, had it occurred.

Again, I note this is contrary to the testimony of the complainant, his wife, and, as will be seen, the testimony of Adam Honaizer, who all say that each man had pushed the other. These observations are not to suggest that any of the witnesses are knowingly giving inaccurate testimony, but points out the difficulties of reliability that may arise when people are attempting to recollect an incident that occurred 18 months prior. [ 29 ] Ms.

Gray testified that after Dean and the complainant were separated and things calm down, Dean Seimens went into the dance hall and she went over and gave Harley Seimens a hug. [ 30 ] She says that the accused came out of the dance hall, talked to Harley and then spotted the complainant and went up the steps toward him. [ 31 ] She says the accused began yelling at the complainant and wanted to fight him saying words to the effect of “Let's go.” She testified the complainant responded by saying words to the effect of “I will fight you later” in a joking manner before he went into the hall for the team’s last dance. [ 32 ] Ms.

Gray testified that the accused started up the stairs apparently to follow the complainant into the dance, saying “This has to happen.” She says she stepped in front of the accused and told him the night is almost over, and that he shoved her aside saying “No this has to be done.” [ 33 ] Ms.

Gray says she followed the accused up the steps and turned to fellow teammates Sonny Gaze and Adam Honaizer and asked them to go into the hall, and that after she observed Sonny coming out with the accused, and a few seconds later, the complainant coming out with blood coming down his face, she was very glad that she had done so. [ 34 ] On cross-examination Ms. Gray estimates she consumed between 7 and 10 alcoholic beverages, however says she stopped consuming at about 10 PM because she knew she had to cleanup. She said she was happy and feeling good but was not drunk. [ 35 ] Also on cross-examination, Ms.

Gray agreed that the complainant may have responded to the accused asking him for fight by saying “F--- you, I will fight you later” but emphasizes he said this with a smile on his face. She also agreed that it was possible the accused had actually told her was “No, I gotta handle this” as opposed to “This has to happen” or “This has to be done”. [ 36 ] Finally, on cross-examination she says that she went to tell Sonny and Adam to go into the dance hall because she believed there

was going to be a fight and that they went right after she told him but that this would have been about within a minute of the accused having entered the hall. Testimony of Adam Honaizer: [ 37 ] Mr. Honaizer testified that he consumed no alcohol that day or at the dance. However pause to note that Ms. Keuris testified that he had limited his consumption to two beer because he was driving. [ 38 ] Mr.

Honaizer said he was outside the hall and observed the pushing between Dean Siemens and the complainant, confirming that each pushed the other one time before he, Penny, and presumably Cheryl, got in between the two men and broke it up. He testified that Dean went into the dance hall, as did Cheryl, while the complainant stayed outside to have a cigarette. [ 39 ] He testified that he, the complainant, Sonny, and Penny were all outside when the accused came out of the dance hall and walked over to them. Mr. Honaizer testified that the accused looked unhappy and had his fists clenched.

He said that he and Sonny were standing back a bit so did not hear the exchange of words. [ 40 ] He said that although he could not say for certain any of the words that were spoken he observed the accused saying something to the complainant who was responding in a defensive manner with his hands up, palms forward, waving his hands back and forth as if he was saying “No, no.” He says he saw Penny start to get in between the two so he moved closer and could start hearing a little more of what was being said. [ 41 ] He testified that he heard the complainant say “I'm not going to fight you man,” and that he also made comments about having stuff to do, the hall to clean.

He recalls the complainant saying words to the effect of ‘if you want to fight me we will fight later but I've got the hall to do’ and said the complainant was laughing the matter off. [ 42 ] He testified that the complainant's wife came out saying that the team dance is coming on and that she grabbed the complainant and pulled him through the secondary door into the dance hall. Mr. Honaizer said that the accused pushed past Penny and was following the complainant and his wife into the hall using the same door.

He said that Penny looked at him and Sonny and said they better go after him, something is going to happen. [ 43 ] Mr. Honaizer testified that he looked through the exterior glass door and saw, through the boot/coat room and through an archway just near the bar area, the accused pullback in a punching motion. Mr. Honaizer demonstrated the punch using his left arm with hand at shoulder height and elbow back in a punching motion.

He could not see the complainant and did not see the punch connect, however was convinced that it had been directed at the complainant whom the accused had followed into the dance hall. [ 44 ] Mr. Honaizer opened the glass door and ran into the dance hall.

The distance from the glass door to the archway he estimated to be approximately 5 feet, and the distance around the corner from the archway to the bar area where the accused and complainant were to be another 5 feet. [ 45 ] He says he ran full speed into the hall and after turning the corner at the archway, saw the complainant lying flat on his back with his head at the feet of the accused, and also saw the accused hit the complainant by “reach[ing] right up to the sky and straight down right to the complainant's face, two, maybe three times” as Mr.

Honaizer sprinted the 5 feet from the corner to the accused and hit the accused tackle fashion in the accused's midsection. Others quickly got involved, including Sonny, who had hold of the accused by the time Mr. Honaizer stood up. [ 46 ] Mr. Honaizer testified on direct that the complainant had ‘gone down like a sack of potatoes’ however, it is clear that he did not see that but inferred it. He said that from his observations the complainant was lying flat on his back, not moving and unconscious as far as he could tell.

He said the only movement coming from the complainant was from the force of the punches he was receiving while lying unconscious on the ground. Testimony of Elwin (Sonny) Gaze: [ 47 ] Mr. Gaze testified he had not been drinking at all at the ball tournament or at the dance. He says he does not drink alcohol. [ 48 ] Mr. Gaze came out of the dance hall and says he saw the complainant and the accused and the complainant's wife talking and kind of arguing. He confirmed he saw the accused standing in front of the complainant's wife clenching his fists.

He was asked again on direct whether this was in front of Cheryl Keuris, likely because the other witnesses recalled that Cheryl Keuris was not present during the verbal altercation between the complainant and the accused. Mr. Gaze confirmed his recollection that it was. [ 49 ] Mr.

Gaze said that the accused asked the complainant if he wanted to fight and that the complainant sort of shrugged it off, saying words to the effect of ‘yeah okay after we clean up’ but said that with a smile on his face. [ 50 ] He said a woman came out of the dance hall saying that the team song was on and that the complainant and his wife went into the building and a few seconds later the accused went running in after them through the same door. [ 51 ] He testified that he was outside and could see through the glass door that was at that time opening and that he saw the accused wind up as if to punch but did not see the punch connect.

He demonstrated the punch wind up using his right hand. He confirmed he could not see the complainant but that he could see the accused's hand and noted it was a closed fist. [ 52 ] Mr. Gaze said that as soon as he saw the wind up he told Adam “Let's go, it's going down,” and then he and Adam ran into the hall, saying it took them a couple of seconds. He says that when they got to where the accused and complainant were, Adam ran towards the accused and tackled him. Prior to the tackle he says he saw that the accused had the complainant down and had punched him three or four times.

[ 53 ] He described the complainant as laying on his back with the accused standing over top of him punching him and described the punches as full swing punches. [ 54 ] He said the complainant was on his back with his legs up trying to fend the accused off, and was also covering his head trying to stop the punches. [ 55 ] Mr. Gaze said that Adam tackled and bounced off the accused, and Mr. Gaze then grabbed the accused to stop him from punching the complainant. He took the accused outside and released him to members of the accused’s baseball team. [ 56 ] On cross-examination Mr.

Gaze confirmed that he had been on the team for about eight years but says he did not talk with the other witnesses about what he saw. He also said he had heard about the incident outside that led to the pushing match but did not see it himself. [ 57 ] Mr. Gaze confirmed on cross examination that he did not run into the dance hall until he saw the accused apparently drawing back for a punch and at that point Mr. Gaze was 10 to 15 feet away from the door. By his estimate he was about 23 to 30 feet away from the accused when he saw the accused wind up for a punch.

He also agreed that what he said to Adam after seeing the wind up were words to the effect of ‘There it goes’ or possibly ‘There they go’. He agreed with defence counsel's suggestion that he may have used the words ‘there they go’ because he had seen a scuffle between the accused and the complainant, however on redirect stated that what he saw was the accused winding up to punch the complainant. Testimony of the accused, Mr. Mathis: [ 58 ] Mr. Mathis testified that he is 25 years old, lives in a common-law relationship, has no children, and works as a second year welding apprentice for a pipeline company.

He grew up in the local area and knew many people at the dance on the night in question. [ 59 ] He testified that he had a few drinks before attending the dance and had a few more drinks at the dance, and was spending his time dancing and socializing when Dean Siemens tapped him on his shoulder looking worried. He asked Mr. Mathis to come outside because he believed his son, Harley in some sort of trouble. [ 60 ] Mr. Mathis says he went outside and saw that Harley was upset and tried to talk to him but did not get a clear answer as to what the problem was.

He said he noticed the complainant, and Sonny, and another person who he now knows to be Adam, nearby and he noticed that the complainant was very mad. He had heard the complainant yell something as soon as the accused had come out of the dance hall but he was not sure what the complainant had said.

He also says he could tell from the complainant's body language that he was upset and that caused the accused to conclude that the complainant must have been the person who is causing a problem with his friend Harley. [ 61 ] The accused testified that he approached the complainant and Sonny, and said “I'm not trying to start anything here but what is going on?

What is the problem?” He said the complainant replied by telling him in an angry and very serious voice “F--- you.” The accused says the complainant also stated “We are fighting later.” [ 62 ] The accused said that he recalls telling the complainant “You are ruining a lot of people's night.” He says he recalls someone then coming outside announcing that the last song was playing and that “We, they headed toward the building.” He recalls the complainant walking into the building first and that he was pretty much right behind him going through the doors. [ 63 ] When asked why he followed the complainant inside, the accused stated “I wanted to figure out everything that happened.” The accused stated he was still trying to have a conversation with the complainant and remembers saying “What's the problem you're wrecking our night,” and then recalls the complainant yelling at the accused but is not sure what he said because it was very loud inside the dance hall. [ 64 ] He said at that point the accused was face-to-face with him and was very upset.

He said the accused came after him, grabbing him by the left shoulder near his shirt collar. He also said the complainant put both hands on him and pushed him into the bar causing the accused to stumble two or three steps sideways as the complainant ran him along the bar. [ 65 ] The accused testified that the complainant's actions resulted in ripping the accused's shirt on his left shoulder and it was at that point he had fear and felt he had to defend himself. He said the complainant's left hand was on his right shoulder and the complainant's right hand was up near the accused's neck and shoulder.

The accused produced his torn shirt as evidence, showing that the left arm on the shirt had been torn off at the collar and shoulder, and that buttons had also been torn off. [ 66 ] The accused testified as follows: “I felt I was in a full on fight, he was going to come after me and if I did not defend myself I was going to get hurt.” The accused testified that he grabbed the complainant on his right side, pulled him half across his body and punched him with a closed right fist while hanging onto his shoulder with his left hand.

He says the punch caused the complainant to fall to his knee. [ 67 ] The accused says the complainant started to get back up and he punched him a second time resulting in the complainant falling to the ground. The accused said he and stood there for two seconds, then was bear hugged by Sonny.

The accused says he did not punch the complainant when the complainant was on the ground and that he did not sucker-punch the complainant from behind. [ 68 ] The accused says that Penny did not talk to him and the complainant while they were outside, and that it was not possible that he pushed her out of the way to re-enter the hall. Testimony of Shelby Reutlinger: [ 69 ] Ms. Reutlinger is a 23-year-old volunteer firefighter who testified that she attended the dance and was not drinking because she expected to be a designated driver that evening.

[70] She knows both the accused and the complainant, and says she was an approximate distance of 15 to 20 feet from the bar areawhen she turned around and saw what looked like the accused and the complainant hugging each other. She said she quickly realizedthey were not hugging but were in a fight and people were pulling them apart.

The incident lasted only a couple of seconds. [71] Although based on the other testimonies one would expect that what she saw was Sonny bear hugging the accused after theincident, when this was put to her by Crown counsel she was adamant that it was the accused and the complainant whom she sawhugging each other. She also says she did see Sonny, but he was one of the people that were separating the accused and thecomplainant. She says that at no time was the complainant on the floor. [72] Ms.

Reutlinger testified that she first checked on the accused because she had noticed his shirt had been torn, and then checkedon the complainant, noted the cut on his face, and gave him a frozen popsicle to put on his face. Analysis and Decision: [73] The Crown has the burden of proving the case against the accused beyond a reasonable doubt. [74] In a case where an accused testifies and there are conflicting versions as to what occurred, is appropriate to be guided by thereasoning set out by the Supreme Court of Canada in the case of R. v.

W.(D.) (SCC), [1991] 1 S.C.R. 742, where, atparagraph 28, the court stated: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accusedbut you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in a doubt by the evidence of the accused, youmust ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by thatevidence of the guilt of the accused. [75] It is open for trier of fact, if the accused is disbelieved and if the accused’s testimony is internally inconsistent and not inharmony with the surrounding established facts, to reject the testimony of the accused, and to go on to consider whether, on the evidencethat is accepted, Crown has proven the case beyond a reasonable doubt. [76] In this case the accused’s evidence leading up to the altercation dovetails to a significant degree with the evidence of the Crownwitnesses.

The evidence of the Crown witnesses regarding seeing the accused wind up for a punch is not inconsistent with the accused'sown testimony that he was the person who punched first. There are no independent witnesses as to how the altercation in the dance hallstarted notwithstanding that there were over 100 people present. [77] The complainant concedes he does not recall the first punch. The fact that this may be consistent with a sucker-punch is not loston me.

However, I can't say that it is also not consistent with being apparently knocked temporarily unconscious as a result of receivingthe blows described by the accused. [78] It is not a question of deciding whose testimony I prefer. The question is whether I am left with a reasonable doubt as to theCrown's version. In this case, I cannot say that I must reject the accused's testimony as a result of inconsistency, obvious fabrication, orlack of harmony with surrounding circumstances.

Also, I remain cognizant of several inconsistencies in the evidence of the Crownwitnesses. [79] A significant example is witness Adam Honaizer’s recollection that the complainant was on the floor unconscious and notmoving while the accused continued to punch him, while the other Crown witness, Sonny, recalls that the complainant, although on hisback on the floor, was defending himself by fending the accused off with his feet and covering his head up with his hands. Thisdiscrepancy means that I have to conclude at least one of the Crown witnesses’ recollection is not accurate on this point.

This and theother inconsistencies referred to above force me to conclude it is possible that there have been other inadvertent errors of recollection andpossible erroneous reconstruction, perhaps as a result of hearing other witnesses’ versions, of an event that occurred 18 months prior tothe trial date. [80] I find all of the Crown witnesses were doing their best to tell the truth, and I thank them for doing their civic duty in attending atthe trial. [81] As to the outcome, this is a case where the guidance of Mr. Justice Wood, as he then was in the case of R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (BCCA), is apt. Justice Wood, in considering the case of R. v. W. (D.) (above), gavethe following further instruction: “If after careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [82] That is exactly the situation I find myself in. I also consider whether, even on the version of events as testified to by theaccused, a conviction could result. On that version I agree that an argument of self-defence pursuant to

section 34 of the Criminal Codewould be made out. [83] I will also note that even if the true facts were a combination of the versions put forward, that being that after being perhapsverbally badgered by the accused for an explanation, the complainant lost his temper and physically grabbed the accused and pushedhim against the bar, and the subsequent physical altercation as described by the accused with the addition of three quick punches whilethe complainant was on the ground but conscious and defending himself with his feet and his hands as was testified to by Mr.

Gaze, thes. 34 defence would still apply, given the entire altercation took place very quickly, and it is not open to the court to weigh to a nicety aperson’s response to being physically attacked. [84] That said, I reiterate I am left with a reasonable doubt as to what actually happened. Consequently, I must conclude the Crownhas not proven its case on the criminal standard of proof beyond a reasonable doubt, and consequently I acquit Mr. Mathis.

_____________________________ R. D. Morgan Provincial Court Judge