R. v. Taylor Date:, 2017 BCPC 420

Citation: R. v. Taylor Date: 20171215 2017 BCPC 420 File No: 84755-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL ALFRED TAYLOR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I. SOLOMON Counsel for the Crown: D. Silverman Counsel for the Accused: K. Beatch Place of Hearing: Abbotsford , B.C. Dates of Hearing: March 27, October 20, December 15, 2017 Date of Judgment: December 15, 2017 [ 1 ] THE COURT : These are my oral reasons for decision. [ 2 ] Mr. Taylor is charged in Information 84755-1 with two counts.

The first count is that on May 27, 2016, at or near Abbotsford, in the Province of British Columbia, in committing an assault of Barry Garner, did cause bodily harm to Barry Garner, contrary to

Section 267 (

b) of the Criminal Code .

[ 3 ] Count 2 alleges that Mr. Taylor, on May 27, 2016, at or near Abbotsford, in the Province of British Columbia, in committing assault of Barry Garner, did carry, use, or threaten to use a weapon or imitation weapon, contrary to

Section 267 (

a) of the Criminal Code .

SUMMARY OF FACTS [ 4 ] The complainant, Mr. Garner, is 75 years old. He lives in a strata development at 3350 Elmwood Drive, Abbotsford, British Columbia. He is on the strata council and also works as the gardener for the development. [ 5 ] The accused is 70 years old and also resides in the development but at the opposite end from Mr. Garner. The development consists of single family residences and duplexes. There is a wide private roadway that stretches from one end of the development to the other.

To the west of the accused's residence is a shed that houses lawn care equipment, including a John Deere ride on lawnmower. There has been conflict between the accused and Mr. Garner for a number of years over lawn maintenance and other issues. [ 6 ] On April 4, 2016, the accused wrote to the strata council outlining his complaints against Mr. Garner. On April 7, 2016, the council met and the council included Mr. Garner, and it was decided that Mr.

Garner would only use a manual mower behind the accused's unit and be more attentive when using the weed eater, as he had caused damage to some planter pots on the accused's property. [ 7 ] On May 27, 2016, Mr. Garner drove the ride on mower from the shed towards the private road. While passing the accused's back yard, the accused was doing some raking and raised a middle finger at him. Mr. Garner took this as an insult. The accused testified he gave him the finger only after Mr. Garner stared at him while riding by. He was very upset by the stare at him. [ 8 ] Mr.

Garner continued on the mower to his own property to retrieve his hat, and shortly returned in the direction of the shed which would take him past the front of the accused's property. Mr. Garner was still riding the lawnmower at this time. [ 9 ] The accused heard the mower returning, and decided it was time to confront Mr. Garner and give him a piece of his mind. He walked to the roadway with the rake in hand and looked towards Mr. Garner who was three to four houses away on the mower. [ 10 ] Mr.

Garner was riding in the oncoming lane; there was no traffic at the time, so he was on the opposite side of the road from the accused's residence. Mr. Garner was looking straight ahead and did not acknowledge the accused. [ 11 ] The accused walked into the middle of the road and waved at him to stop. The accused says he did this with his hands, but I accept Mr. Garner's evidence that the accused was waving the rake in the air at the time. [ 12 ] The accused admits that he was angry, and in his words he said he felt, "Enough is enough." He also testified that he wanted a, "Showdown”.

He had endured harassing behaviour for a number of years, and he planned to give Mr. Garner an earful. He says he did not plan on violence, only a heated argument at most. [ 13 ] On seeing the accused in or near the middle of the road waving a rake, Mr. Garner turned the mower in the direction of the accused. Mr. Garner minimizes this action as non-aggressive and non-threatening. I do not accept this aspect of his evidence. [ 14 ] The accused had formally complained to the council against him, the strata imposed new obligations on him, and he was given the finger.

And now he was being impeded and the accused was waving a rake. Mr. Garner was angered by all this and turned the mower in the accused's direction. [ 15 ] As the mower approached the accused at a slow speed, Mr. Garner applied the brakes and the accused stepped around the front of the mower and was to the right of Mr. Garner. The mower's stopped position was in the middle of the roadway but pointing towards the accused's residence. The curb was approximately six feet from the right tire of the mower. [ 16 ] In a state of rage, the accused struck Mr. Garner to the head with the rake.

He said he did so in self-defence as he had to prevent being run over. I reject this evidence and it does not raise a reasonable doubt. [ 17 ] I find as a fact that the accused was clear of the mower and in a safe position out of harm's way, standing between the mower and the curb when he struck Mr. Garner with the rake causing bodily harm to him. [ 18 ] I am satisfied beyond a reasonable doubt that at the time the accused delivered the first blow to Mr.

Garner's head, there were no reasonable grounds to believe that force was being used against him or that a threat of force was being made against him. [ 19 ] The first blow was made offensively, not defensively, from a safe position. Moreover, the blow to the head with a rake, as a weapon, was extremely unreasonable in the circumstances and considerably beyond any measured response. [ 20 ] After the first blow, which I find stunned Mr. Garner and rendered him defenceless, the accused struck him again to the head with the rake. The second blow knocked Mr.

Garner out for a few seconds and caused him to slump over the steering while. While slumped over, the accused struck him a third time with the rake, this time on the back. [ 21 ] I am satisfied beyond a reasonable doubt there was this third blow. I accept Mr. Garner's evidence on this point and reject the accused's denial. [ 22 ] The accused testified that the second blow to the head was also in self-defence. I reject this evidence and it does not raise a reasonable doubt. [ 23 ] The accused says he continued to feel threatened by Mr. Garner and the mower, so a second blow was meted out in self- defence.

Quite frankly, this evidence is preposterous, and is rejected. It does not raise a reasonable doubt. [ 24 ] I find as a fact that the accused continued to be clear of the mower when he applied that second blow, and there's no air of reality to the claim of self-defence. The accused could have easily stepped further away from the mower, but chose out of anger and

rage to impose further blows with the rake. He continued to act offensively not defensively. There was no present threat or danger to him. [ 25 ] As noted above, I also reject the accused's evidence that there was no third blow to Mr. Garner's back. His evidence does not raise a reasonable doubt. I accept Mr. Garner's evidence that he was struck in the back while slumped over. [ 26 ] I am satisfied beyond a reasonable doubt that Mr. Garner suffered bodily harm in this assault. The blows to the head caused a wound to the forehead requiring nine staples to close.

He suffered a large bruise to his right eye and nose area, and a lesser black left eye. Fortunately, Mr. Garner was wearing protective eyewear over his glasses at the time of the blows. Both the protective eyewear and glasses were broken in the attack. [ 27 ] Since the accused testified, the principles of W.D. are applicable. They say, first, if you believe the evidence of the accused, obviously you must acquit. In this case I do not believe the evidence of the accused and his claim of self-defence is rejected.

Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. In this case I am not left in a reasonable doubt by the evidence of the accused for the reasons set out above.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [ 28 ] In this case I am satisfied by the totality of the evidence that the Crown has proved the case beyond a reasonable doubt. [ 29 ] Crown counsel has the onus of proving each element of each offence beyond a reasonable doubt, and Crown must negate the defence of self-defence with proof beyond a reasonable doubt. [ 30 ] I am satisfied the Crown has met their onus on each of these tests.

The Crown has proved each element of the offence beyond a reasonable doubt and has negatived the defence of self-defence beyond a reasonable doubt. [ 31 ] Accordingly, the accused is found guilty of both offences. J.I. SOLOMON Provincial Court Judge