R. v. de Vos; R. v. Godfroid et al Date:, 2012 BCPC 542

Citation: R. v. de Vos; R. v. Godfroid et al Date: 20120504 2012 BCPC 0542 File Nos: 77033-1, 77034-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Jim de Vos; Jan Godfroid, Terrick Christian Bullion, Barbara Wallace, Nancy Smith DECISION OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Appearing in person: Jeannette Marion Gorman Place of Hearing: Abbotsford , B.C. Date of Hearing: April 23, 2012 Date of Judgment: May 4, 2012

[1] On March 26, 2012, Jeanette Marion Gorman, “the informant” affirmed two Criminal Code informations before Justice of thePeace Mahar. Under s. 504 of the Criminal Code, a Justice of the Peace must permit an informant to swear or affirm an informationalleging that someone has committed criminal offences if the wording of the information appears to make out an offence recognized inlaw: s. 504 Anyone who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information inwriting and under oath before a justice, and the justice shall receive the information, where it is alleged (

b) that the person...has committed an indictable offence within the territorial jurisdiction of the justice... [2] However, no action will be taken with regard to an information unless a Justice of the Peace decides that process should issue,meaning that a summons or warrant should be issued to bring the people accused of offences to court to answer to the charges. CriminalCode s. 507 sets out the duties of the Justice of the Peace who must decide whether to issue process. 507(1) ... a justice who receives an information...shall, except where an accused has already been arrested with or without warrant, (

a) hear and consider, ex parte (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and (

b) where he considers the case for so doing is made out, issue, in accordance with this section, either a summons or a warrant... tocompel the accused ... to answer to a charge of an offence. [3] Informations sworn or affirmed by people other than police officers (“private informants”) may be referred to a ProvincialCourt Judge for a hearing to determine whether process should issue. That hearing is conducted ex parte, meaning in the presence ofonly one party, the informant. [4] I have conducted a hearing in which Ms. Gorman testified and filed documents, photographs, and a DVD.

In order for me toissue process on these informations, Ms. Gorman must provide "tangible evidence from which one might conclude that the offence hasbeen committed by the person named in the Information." (Re Swan and Travrydes and The Queen (1976) (ON SC), 48 CCC (2nd) 501 (Ont HC)) The test she must meet has also been described in British Columbia as a prima facie case (one satisfying aninitial examination). (R v.

Fry, (BC CA), [1998] BCJ No. 1163 (BCCA); Re Lord [1997] BCJ No. 2501 and ReSorenson 2001 BCPC 249.) [5] A judge can never know all the facts but must make decisions based only on the admissible evidence presented in the hearing. Although Ms. Gorman filed the Reasons for Judgment on applications to dismiss three lawsuits she and her husband launched inProvincial Court dealing with the same incidents as these informations (Brian Shantz and Jean Gorman v. Jan Godfroid; Jean Gorman v.Martha Bullion; and Jean Gorman v.

Jan Godfroid, March 14, 2012, Abbotsford Registry, File #20550), what the Honourable JudgeHamilton said about the allegations is not evidence that I can consider. The issues in the civil matter were different from those I mustdecide and the evidence was different. [6] I will now deal with the two informations separately. Information 77033-1 [7] This information contains two counts, alleging that Jim de Vos committed assault and assault causing bodily harm on Ms.Gorman on September 29, 2010, contrary to ss. 266 and 267(

b) of the Criminal Code. Ms. Gorman testified and provided documentaryevidence to support the following allegations: she had had previous problems with Mr. de Vos and Jan Godfroid; on the morning ofSeptember 29 she met both men in the hall of the building where they all lived; Mr. Godfroid took out his camera; she attempted to grabthe camera; Mr. de Vos grabbed her hand to make her let go; she let go; Mr. de Vos continued to hold onto her hand and dislocated herthumb: it popped out, causing her pain, and she popped it back in. She went to the emergency ward that evening and wore a brace fortwo months. [8] Ms.

Gorman acknowledges that she had been drunk the night before and was still inebriated at the time of this incident. Whenpolice attended, she was arrested for criminal harassment of another resident (a charge to which she subsequently pleaded guilty) andpolice refused to charge Mr. de Vos. Although they are small and dark, still photos taken by a surveillance camera in the building appearto show Mr. de Vos holding Ms. Gorman’s left hand when she is not touching the camera and is across the hall from Mr. Godfroid. Ms.Gorman also provided a record from the hospital emergency department she attended that evening.

I am unable to decipher thehandwritten notes sufficiently to determine whether they contain anything other than what Ms. Gorman reported to hospital personnel. However, she testified that she suffered pain and wore a brace for two months after the assault. [9] I find Ms. Gorman presented tangible evidence that Mr. de Vos assaulted her by applying force without her consent to her handat a point when she no longer posed a threat to Mr. Godfroid or his camera. While Mr. de Vos may have been entitled to use force toprotect Mr. Godfroid and his camera from assault by Ms.

Gorman, on her account Mr. de Vos used more force than necessary. [10] For a charge of assault causing bodily harm, the victim must suffer harm that is more than merely transitory or trifling in nature. While Ms. Gorman was able to pop her thumb back in immediately, she said she wore a brace for two months. There is therefore someevidence of bodily harm to support the second offence alleged.

[ 11 ] Because there is some tangible evidence to support both charges, I direct that a summons be issued to compel Jim de Vos to attend court to answer to both counts on information 77033. [ 12 ] The test for issuing process is a low one. The responsibility of prosecuting these charges falls upon Crown Counsel who has a duty under the provincial charge approval standards to proceed with them only if satisfied that there is a substantial likelihood of conviction and that it is in the public interest to proceed.

Crown Counsel will have to consider all the available evidence and its reliability, including the fact that Ms. Gorman admits being inebriated at the time her thumb was hurt, and that the photographs do not show whether she was threatening or fighting with Mr. de Vos while he held her hand. Ms.

Gorman expressed unhappiness with the conduct of an Abbotsford Crown Counsel in another case, but she should understand that after a careful, objective review a prosecutor might properly decide that the available evidence in this case does not satisfy the requirements for proceeding with prosecution and thus might be obliged to stay the charges. Information 77034-1 [ 13 ] This information contains three counts: two charging Jan Godfroid with assault and assault causing bodily harm on Brian John Roy Shantz on September 22, 2010, contrary to ss. 266 and 267 (

b) of the Criminal Code ; and the third charging Jan Godfroid, Terrick Christian Bullion, Barbara Wallace, and Nancy Smith with public mischief with intent to mislead by reporting an assault had been committed when it had not, on the same date, contrary to s. 140 (

c) of the Criminal Code . [ 14 ] Mr. Shantz is Ms. Gorman’s husband. He did not testify but Ms. Gorman provided a video taken by a security camera and identified the people depicted in the video. The video appears to show Mr. Shantz using a camera, apparently taking photographs of the people named in the information as they collect mail and get on an elevator in the building lobby. It then shows Mr. Godfroid pushing papers into Mr. Shantz’s face and hitting Mr. Shantz, although it does not show most of Mr. Shantz’ body. After this, Mr. Godfroid appears to be on the ground. Ms.

Gorman filed photographs she took of Mr. Shantz’s hand after the incident, showing a cut on the base of the thumb and what are said to be scratches. Ms. Gorman said Mr. Shantz was charged with assault of Mr. Godfroid but the Crown did not proceed with the charge on the trial date. [ 15 ] Unfortunately, the video does not show the entire bodies of Mr. Godfroid and Mr. Shantz during the altercation, so it is impossible to tell exactly what happened between the two men. Ms.

Gorman was not present and her account of the altercation was based on what her husband told her, so I cannot consider her hearsay testimony about the incident. While the video does not show Mr. Shantz striking Mr. Godfroid, Ms. Gorman filed witness statements of Mr. Godfroid, Mr. Bullion, Ms. Wallace, and Ms. Smith stating that Mr. Shantz struck and kicked Mr. Godfroid. [ 16 ] I can only consider the admissible evidence presented in this hearing. Because the witness statements say Mr. Shantz was the aggressor; because Ms. Gorman did not witness the incident; and because Mr.

Shantz did not testify; the video is the only possible evidence that Mr. Godfroid assaulted Mr. Shantz. However, the video does not show enough of the men’s bodies to provide tangible evidence of assault by Mr. Godfroid. [ 17 ] Since the video doesn’t show enough to establish who assaulted whom, or whether there was a consensual fight, there is insufficient evidence to establish that when Jan Godfroid, Terrick Christian Bullion, Barbara Wallace, and Nancy Smith reported that Mr. Shantz assaulted Mr.

Godfroid, they were committing public mischief by making a false report with intent to mislead. [ 18 ] For these reasons, I cannot issue process on the three counts in information 77034-1 and I direct that process not issue. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia