R. v. Thomson Date:, 2011 BCPC 475

Citation: R. v. Thomson Date: 20110504 2011 BCPC 0475 File No: 71703-1 Registry: Nanaimo Registry IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM HENRY THOMSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.E.SAUNDERS Counsel for the Crown: J.Kulla Counsel for the Defendant: C.Sutton Place of Hearing: Nanaimo , B.C. Date of Hearing: March 30, 2011, April 13, 2011 Date of Judgment: May 4, 2011 THE CHARGE

[ 1 ] William Thomson is charged with two counts, that in Nanaimo, British Columbia, on August 11th, 2010, he assaulted Susan Steed with a weapon, on count 1, and assaulted Brenda Cheetham with a weapon on count 2. OVERVIEW [ 2 ] William Thomson was staying at a residence on Mill Street, Nanaimo, in August, 2010, with his girlfriend, Lynn Ahlstrom and two friends, namely Susan Steed and Troy Dixon. [ 3 ] Susan Steed invited Brenda Cheetham to spend the night of August 10th. [ 4 ] In the morning of August 11th, 2010, there was a disturbance caused by Mr.

Thomson who believed that someone had stolen things out of one of the rooms in the house. [ 5 ] According to an Agreed Statement of Facts, there was an abandoned 911 call at 8.34 am at 58 Mill Street. When Constable Neufeld arrived four minutes later, he saw Susan Steed and Brenda Cheetham coming down the driveway. At the same time, Mr. Thomson emerged from the rear of the house in a rage and was yelling at the two women. A baseball bat was found leaning against the kitchen wall.

THE EVIDENCE [ 6 ] There were three Crown witnesses, Susan Steed, Troy Dixon and Constable Scrace. [ 7 ] Steed and Dixon described the events of the previous night and the morning of August 1th in detail. [ 8 ] In particular Steed described how she and Dixon had been out the night before with a friend, Brenda Cheetham. Steed called Thomson to ask if she could spend the night with them to which he agreed. She would not have brought Cheetham home had he not agreed. The three of them sat around into the early hours of the morning and were joined by Thomson on a couple of occasions, before they all went to bed.

Cheetham slept on the sofa in the living room. Steed and Dixon shared a room as they are in a relationship. [ 9 ] The next morning, she awoke to Thomson standing over her yelling at her about someone stealing money. He struck her with a baseball bat on her knee which left a bruise and some swelling. She showed Constable Scrace and photographs were taken (exhibit 2). She could not remember if it was her left or right knee. She tried to leave and Thomson stopped her.

She was not sure where Troy was at that stage. [ 10 ] She saw Thomson grab Cheetham by the hair and drag her across the floor for about twenty feet, “like a ragdoll”. Cheetham was so terrified she soiled herself. He had the bat in his hand and accused her of stealing the money. [ 11 ] She went back into the room and called 911 but Thomson came in so she hung up after giving the address. When the police arrived soon after, she and Cheetham ran out the house. [ 12 ] She could not recall all the finer detail about the event because she was terrified and things were chaotic. [ 13 ] Troy was in the kitchen.

She did not recall seeing Linda Ahlstrom, Thomson’s girlfriend during the disturbance which she described as mayhem as Thomson was so enraged. [ 14 ] Troy Dixon has been a long time friend of Bill Thomson. He confirmed that he had socialized with Cheetham, Steed and Thomson and described his recollection of the events of the morning of August 11 th . [ 15 ] He was woken by Thomson who told him someone had stolen money out of the room in the house which no one was to go into. Thomson was very upset.

He was directed by Thomson to stay in the kitchen and did so because he knows how intimidating and frightening Thomson can be when he is in one of his moods. He was in a furious demeanour. He heard him wake Steed up and heard her give a little yelp. [ 16 ] He heard Thomson confronting Cheetham and then saw him dragging her by the hair across the floor on her knees and she defecated in her pants. Thomson was pacing around the house and keeping everyone in their places so that they could not leave. [ 17 ] The police arrived soon after.

He could not recall seeing Linda Ahlstrom until the the end of the incident. [ 18 ] He did not provide a statement at the time because he did not like to be regarded as a “rat”. He later went to the police and made a statement, at Thomson’s request, to say there had not been a baseball bat involved, to help him. His evidence at trial was that he had seen a bat in Thomson’s hand and he was holding it like a director’s stick but he could not be sure whether he used it to strike Steed or Cheetham. [ 19 ] He admitted changing his evidence regarding the bat, when cross examined.

He said he failed to mention the bat earlier because he was afraid as he had been threatened by “Bill and his buddy not to mention the bat” and he had gone to the police to give a statement to “go easy on Bill with the bat issue”. [ 20 ] He was adamant that he had never struck Sue in a fight or otherwise and that he did not kick her on the knee. [ 21 ] Like Steed, he described the situation as frightening and chaotic and could not recall all the detail, as a result. [ 22 ] Constable Scrace testified that she had attended at 58 Mill Street and talked to Steed and Cheetham who were highly emotional, hysterical and frantic.

Steedman was running her hands through her hair which was coming in handfuls. Steed showed her an injury to her knee which was red and swollen and she took photographs.

[23] Wiliam Thomson testified on his own behalf. He said he was looking after the house for a friend, Lloyd Loeppky and did notallow anyone to stay there other than Steed and Dixon as they were friends. He was asked by Steed if Cheetham could spend the nightand he said no. [24] The next morning he found someone sleeping on the couch and the door to the bedroom, which was off limits, open, and somecash missing. He became infuriated and confronted Troy first. He slapped Steed on the ankle over the covers to wake her up with hisopen hand.

He prevented her from leaving and then grabbed Cheetham by the side of her shirt and “picked her up and guided her into thebedroom”. She soiled herself. He sent her to the bathroom. He then went back to talk to Steed and saw she was hiding something. [25] The police arrived shortly after. The two women fled and made a “big drama thing” and he told the police that they were abunch of thieves. [26] He was loud, aggressive and angry. Everyone was afraid of him as he was “pretty intense”.

He denied having a bat in his handalthough he did joke with everyone that if anyone touched anything in the house he would break their knees with a bat. He denieddragging Cheetham. She just came voluntarily with him and he “lifted” her by the shirt. She kept denying that she had taken anything.She was “scared to death”, in his own words. [27] He said that the injury to Steed’s knee or Cheethams’ hair failing out in handfuls had nothing to do with him. [28] Lynn Ahlstrom is Thomson’s girlfriend.

She was in the upstairs part of the house and she woke up to Thomson yelling andscreaming that someone had taken some money. She went into the kitchen where Troy was sitting and stayed there with him. She sawThomson and Cheetham go into the bedroom. He picked her up off the couch and she walked with him to the bedroom.

Quiteunsolicited, she stated that Thomson “did not hit her with a bat or anything nor did he hit her”. [29] She said Steed had been kicked by Dixon on the knee two days before in a fight, and it was bruised then. [30] She acknowledged that Thomson has a bad temper and yells at her and that he can be scary when he yells.

ANALYSIS [31] Prior to Counsel making their submissions, I asked them to consider whether or not the rule in Browne v Dunn (1893), 6 R.67(U.K.H.L.) applied because many material points which the accused testified to, were not put to the Crown witnesses to give them anopportunity to agree or disagree with the version of events described by the accused.

Browne v Dunn requires counsel to give notice tothose witnesses who are going to be impeached. [32] Counsel provided me with case law which I have reviewed as it relates to the ancient rule and its evolution in Canadianjurisprudence (R v McNeill (ON CA), 2000 CarswellOnt 1305, 48 O.R.(3d)212; R v Lyttle, [2004] S.C.R.193; R vChan 2007, BCPC 136; R v McLetchie 2011 CarswellOnt.1864, 2011 ONSC 1440). [33] I have decided to exercise my discretion not to recall the witnesses because the Crown witnesses were credible in my view andwere not ambushed by the failure of defence counsel to cross examine on those points in which they differed from the accused. [34] I have considered the principles in R v W.(D.), (SCC), [1991] 1 S.C.R.742 as they relate to the credibility of theaccused. [35] Mr.

Thomson was not credible nor does the evidence tendered on his behalf give rise to a reasonable doubt. On the totality ofthe evidence which I do accept, I find him guilty on count 1, as charged, and guilty of assault simpliciter on count 2, for the reasons setout below. [36] Mr. Thomson terrorized the individuals in the home on the morning of August 11th. His own girlfriend said that he had a temperand was frightening when enraged. He admitted himself that he was very angry about the fact that someone had gone into the forbiddenroom and stolen money. [37] There was a baseball bat found in the kitchen.

Thomson himself confirmed there was a bat in the house. He denied picking it upat any point and denied striking Steed with it. His evidence that he slapped her once with an open hand over the covers on her ankle iscontradicted by Steed and Dixon who heard her yelp after Thomson went into the room. A light tap on the ankle is unlikely to draw ayelp; a strike with a baseball bat is. [38] Ahlstrom said it was an old injury from two days earlier. Steed was emphatic, despite rigorous cross examination, that she hadbeen struck with the bat on her knee.

The evidence of the Crown witnesses is consistent with a fresh injury. Constable Scrace confirmedthat she observed Steed’s knee to be swollen when she attended and her evidence is consistent with a fresh injury. The photographstaken by Scrace shortly thereafter, are consistent with a fresh injury (exhibit 2). Both Dixon and Steed deny that the injury was the resultof a fight two days earlier when Dixon kicked her. Dixon denied kicking Steed at any time. [39] Ahlstrom’s evidence regarding the baseball bat is peculiar.

Without prompting, in direct examination, she referred to a bat andthat Thomson would not have used it on people’s knees. [40] Steed said that Thomson had threatened to start smashing knee caps if no one confessed to stealing the money. Dixon said heused the bat to prevent anyone leaving the house. Thomson himself does not deny preventing Steed from leaving even though he denieshe had the bat in his hand.

Steed wanted to leave and was afraid which is consistent with her being struck with the bat. [41] Dixon said that he did not make a statement at the time because he did not want to be regarded as a “rat” but later went to theRCMP, at Thomson’s request, which was not denied, or put to him in cross examination, to say there was no bat, to make things betterfor Thomson. He was candid that he had changed his evidence and explained why. While this evidence has to be treated with caution,

his overall evidence is credible and he and Steed corroborate each other in most material respects. [ 42 ] He was also candid that he was afraid of Thomson particularly when he was angry. [ 43 ] Oddly enough, Thomson himself corroborates the Crown witnesses in material respects such as striking Steed, although he denies using the bat, he admits hitting her on the leg. [ 44 ] Steed and Dixon describe a frightening event as they watched Thomson drag Cheetham across the room by her hair and her fear caused her to soil herself which is consistent with being terrified.

Thomson said he escorted her across the room by the shirt at the neck and downplays the event. Ahlstrom is not quite sure what she saw Thomson do with Cheetham but the general tenor of her evidence was to downplay and ameliorate Thomson’s actions overall. [ 45 ] Ahlstrom left the house soon after Thomson became infuriated and she confirmed that he has a temper and is intimidating when he is enraged. It is unlikely that she stayed around as neither Steed nor Dixon saw her when Cheetham was being dragged across the floor.

Dixon was in the kitchen and would have seen her had she been there with him. [ 46 ] Constable Scrace confirmed that Steed and Cheetham were hysterical and highly emotional when she saw them out on the street shortly after Thomson’s rampage, which is consistent with Steed and Dixon’s evidence that he was out of control and frightening. [ 47 ] Defence counsel submitted that there was a defence pursuant to

section 41 of the Criminal Code . That defence does not apply to the facts of this case as Thomson was not removing trespassers from the property. [ 48 ] On the totality of the evidence, Thomson’s denial that he used a bat and that he did not drag Cheetham by the hair across the room is not credible or plausible nor does it raise any reasonable doubt. [ 49 ] Susan Steed and Troy Dixon described a highly charged situation and I accept their evidence.

They provided some detail and could not give fine detail, which is consistent with being afraid and being in a chaotic situation. [ 50 ] The evidence of Constable Scrace and the admissions regarding Constable Neufeld’s evidence, are consistent with the evidence of Steed and Dixon and corroborate them in material respects such as the emotional state of the two women, Steed’s injury, the presence of a bat in the kitchen, Thomson still being in a rage when the police arrived, and Cheetham’s hair falling out in handfuls as she spoke to Scrace. [ 51 ] Crown conceded that on count 2, the evidence does not support a conviction of assault with a weapon, as the Crown evidence was that Thomson had the bat in his hand, and was using it like a director’s stick, but did not use it to assault Cheetham.

Crown conceded that count 2 should have alleged a threat to use the bat and because that was not done, he is not asking for a conviction as charged, pursuant to

section 267 but a conviction pursuant to

section 265 of the Code. [ 52 ] The Crown has proved its case beyond a reasonable doubt on count 1 and Mr. Thomson is found guilty as charged. On count 2, the Crown has established a common assault on Brenda Cheetham beyond a reasonable doubt and he is found guilty of the lesser included offence of assault simpliciter. Dated at Nanaimo this 4 th day of May, 2011 _____________________________________ THE HONOURABLE J.E.SAUNDERS (PCJ)