R. v. Fox Date:, 2012 BCPC 376

Citation: R. v. Fox Date: 20120919 2012 BCPC 0376 File No: 92966 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN ALEXANDER FOX REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. D. Mann Appearing in person: Mr. J. Fox Place of Hearing: Kamloops , B.C. Date of Hearing: August 28, 2012 Date of Judgment: September 19, 2012

[ 1 ] John Alexander Fox is charged with assault causing bodily harm of Norman Byspalko. The two men are known to each other, having previously worked together at tree-topping services. Both men denied being impaired at the time of the incident but the evidence of Constable Hunt who responded to the report, and who received the call from Mr. Fox belied this. It calls into question the credibility of both gentlemen. [ 2 ] Mr. Byspalko said that he had been on disability since 2006 but had done odd jobs “here and there” since then. On the day in question, he had a friend visiting his place.

Leaving the friend at home, he drove to the A & W to pick up burgers. He then went to the local beer store to pick up a six pack of beer. Mr. Byspalko said that he had not been drinking at that point and had not taken any drugs. He had left his residence at 7:30 p.m. In cross-examination, however, Mr. Byspalko said he had a beer before his friend arrived. There had only been one in the fridge, and he had nothing further to drink before going to the liquor store. [ 3 ] On arriving at the beer store, Mr. Byspalko said he had barely turned off his car when he saw Mr. Fox coming out of the liquor store. He said Mr.

Fox spotted him right away. Mr. Fox went to his own car, put his beer in it and then came to the driver’s side of Mr. Byspalko’s car. He said Mr. Fox’s vehicle was three stalls to the left. There were no vehicles parked between them. [ 4 ] Mr. Byspalko said he was sitting in his car with his seatbelt on and watching Mr. Fox put his beer in his vehicle. When he came up to the car, Mr. Fox asked Mr. Byspalko where his climbing spurs were. Mr. Byspalko told him that when he and Jim Campbell gave him the money they owed him from some years back, he would get his spurs back.

He was still seatbelted in his car at that point. [ 5 ] He said the driver window was wide open and Mr. Fox was about three feet from it. Mr. Fox walked away a couple of steps so Mr. Byspalko turned to lean down to bite the burger he had purchased. As he turned away, a fist came through the window striking him along the cheekbone next to his eye. The blow was hard and he was left hanging half unconscious in his seatbelt. Mr. Fox left. Upon recovering, Mr. Byspalko drove home to his place without going into the beer store. Upon arriving at home, he called 911 within minutes.

The police arrived within 10 or 15 minutes. Mr. Byspalko said he had nothing to drink before the officer arrived. [ 6 ] It turned out that the blow was quite significant. He had a left cheekbone fracture requiring surgical treatment. He was left with some facial numbness and migraines. Mr. Byspalko described the injury as a crushed jaw which was clearly overstated. This has also posed a challenge with respect to the reliability of his evidence. [ 7 ] On cross-examination, Mr. Fox suggested that Mr. Byspalko struck out first with a silver object. Mr.

Byspalko denied this. [ 8 ] Constable Hunt is the R.C.M.P. officer who received the dispatch for Mr. Byspalko’s complaint. He arrived at Mr. Byspalko’s home at around 7:45. Mr. Byspalko was there with a couple of friends. He was quite upset and had an alcoholic beverage in his hand. Constable Hunt noted his face was swollen with a red patch under his eye. He was yelling and angry, and unable to be calmed. Constable Hunt noted the odour of liquor, slurred speech, and observed Mr. Byspalko pacing. He said that an ambulance was called but Mr. Byspalko was very belligerent. Constable Hunt was present with Mr.

Byspalko for an hour and a half but could not obtain a statement from him because of the amount of alcohol he had drunk. Mr. Byspalko lied in his evidence when he said he had not consumed alcohol – or no more than one beer. He was significantly more intoxicated than one beer when Constable Hunt attended his residence. [ 9 ] Constable Hunt said that quite some time after he dealt with Mr. Byspalko, he received a complaint from Mr. Fox. This was around 10:00 that evening. Mr. Fox was crying and having a hard time staying within one frame of thought. There was a heavy slur to his speech.

Constable Hunt had dealt with Mr. Fox on a number of occasions, but never while Mr. Fox was sober. [ 10 ] Mr. Fox was also largely incredible. He said at first that he had not consumed any alcohol prior to going to the beer store. Then he changed his mind to say that perhaps he had and he was not sure. It would not have been more than a beer. [ 11 ] He went to the liquor store to buy a six pack. He was not driving. His pregnant girlfriend was driving. He said he first saw Mr. Byspalko when he drove up to the liquor store. He parked right beside Mr. Byspalko, not three spots away. He could not remember if Mr.

Byspalko pulled in when he was on his way in or when he was on his way out of the liquor store. [ 12 ] When further cross-examined, Mr. Fox determined that he must have seen Mr. Byspalko when Mr. Fox came out to his vehicle because he put his beer in the car. He asked Mr. Byspalko for his spurs and other climbing equipment for his work. He agreed that he went up to Mr. Byspalko’s driver window and that Mr. Byspalko was still sitting when he approached. His seatbelt was still done up. Mr. Fox said Mr. Byspalko seemed hammered. He realized this as soon as Mr. Byspalko opened his mouth. [ 13 ] Mr. Fox said Mr.

Byspalko started getting his seatbelt off and started getting out of the car. After pronouncing that Mr. Fox would not get his equipment back until he got his money, Mr. Byspalko apparently started ranting and raving and stabbing out at Mr. Fox. Mr. Fox became scared as soon as Mr. Byspalko stabbed outward with an object from the car. [ 14 ] Mr. Fox said as Mr. Byspalko started getting out of the car, he responded with instinct and punched Mr. Byspalko. Mr. Fox was close enough that he had to jump back and, even still, Mr. Byspalko just about hit him. After striking Mr. Byspalko, Mr.

Fox jumped in his vehicle and left because he thought Mr. Byspalko would come after him. [ 15 ] Mr. Fox said he went home, consumed beer and then called Constable Hunt. He said he was scared of Mr. Byspalko. He thought first before calling the police because he was afraid Mr. Byspalko would do something crazy. It was his girlfriend who persuaded him to call the police. [ 16 ] On cross-examination, Mr. Fox said it kind of looked like Mr. Byspalko was having a little trouble getting out of his seatbelt. He agreed he could have gone to his own car once Mr. Byspalko started “freaking out” but said he was coming fast.

He was coming out

of his car to get him and he had a nine month pregnant lady sitting in the car waiting for him. He thought Mr. Byspalko would have caught him before he got in his car. When he struck Mr. Byspalko, the door was cracked open a little. Mr. Byspalko was opening the door at the same time as he was getting his seatbelt off. He might even be out of his seatbelt. However, Mr. Fox also said Mr. Byspalko was having trouble with his seatbelt. [ 17 ] Mr. Fox said he did not know if Mr. Byspalko was looking at him when Mr. Fox struck him because his eyes were going all over the place.

This does not match up with the injuries shown in the photograph. The photograph shows the blow landed on the side of Mr. Byspalko’s face next to his left eye. [ 18 ] Mr. Fox offered a number of gratuitous comments to discredit Mr. Byspalko:

a) It is his modus operandi to provoke an assault so he can sue people;

b) Mr. Byspalko is trying to sue everybody, “it’s his gig”;

c) Mr. Byspalko was working illegally while on disability;

d) Mr. Byspalko has been in many altercations in town, more than Mr. Fox can count;

e) He has always been scared of Mr. Byspalko;

f) Mr. Byspalko’s friends laid a beating on him to get better injuries so that he could sue Mr. Fox. [ 19 ] In addition, Mr. Fox said Constable Hunt mistook a bad connection for slurred speech. Mr. Fox’s evidence regarding this incident is neither internally consistent, objectively consistent with Constable Dallas’ observations or the injuries, nor credible on its own. [ 20 ] I do not believe Mr. Fox. I do not believe that Mr. Byspalko was unbelted from his seatbelt and getting out of his car when Mr. Fox had to hit him for fear that he would be hurt by Mr. Byspalko. I find that Mr. Fox approached Mr.

Byspalko in his vehicle to demand the return of his climbing equipment. I find that Mr. Byspalko was still belted into his seatbelt and, due to his impairment, was having difficulty opening his seatbelt to get out of the car. Having refused to return Mr. Fox’s equipment, Mr. Byspalko was engaged with eating his hamburger and unbuckling himself to go into the liquor store when Mr. Fox struck him through the car window on the left side of his face, which was turned away from Mr. Fox. I do not believe that Mr. Byspalko was in the process of getting out of his car or that he had been striking out at Mr.

Fox in rage. [ 21 ] The independent evidence of Constable Hunt supports Mr. Byspalko’s evidence about where he was struck while his face was turned. The medical report filed by Dr. Rishiraj corroborates the evidence that Mr. Byspalko suffered a fractured cheek as a result of the blow by Mr. Fox. [ 22 ] I am satisfied on the evidence that the Crown has proved beyond a reasonable doubt that Mr. Fox assaulted Mr. Byspalko causing him bodily harm and I convict Mr. Fox of same. ______________________ S.D. Frame Provincial Court Judge