R v. Thomas Date:, 2014 BCPC 205

Citation: R v. Thomas Date: 20140904 2014 BCPC 0205 File No: 96886-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK EARL JUNIOR THOMAS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Evan Goulet Counsel for the Accused: Mr. Jeremy Jensen Place of Hearing: Kamloops , B.C. Date of Hearing: August 15, 2014 Date of Judgment: September 4, 2014

[ 1 ] Mr. Thomas is charged with the assault of David Watkins. There were two witnesses for the Crown being Tara Crowe and David Watkins. [ 2 ] Ms. Crowe testified that she had been in a relationship with Mr. Thomas, living with him for a period of five months. This relationship ended in July 2013, when she moved out of his home. Mr. Thomas testified that the relationship ended because of “extreme infidelity”. During this part of the testimony, he was notably agitated and continues to be upset by this. [ 3 ] Ms. Crowe testified that she went to the Westsyder Pub on August 10, 2013 to meet with Mr. Watkins.

At that point, she was not in a romantic relationship with him. They had known each other for a brief period of time and were friends. Mr. Watkins plays in a band and invited her to come to listen to him play, then to take him home. [ 4 ] Both Mr. Watkins and Ms. Crowe live within walking distance of the Westsyder Pub though Mr. Watkins lives further away. She walked down to the pub to have a drink with him and listen to him play music. Her plan was to have them walk back to her place and she would take him home from there. [ 5 ] After Ms. Crowe had her first drink, she saw a friend of Mr. Thomas, Danny Miller.

This person made her uncomfortable and so she told Mr. Watkins that she wanted to leave. [ 6 ] Mr. Watkins acquiesced and the two of them left the pub. While they were walking past the pub’s smoking area along the street, Ms. Crowe heard someone say “oh you are walking that skanky whore home”. She said Mr. Thomas said this. Mr. Miller joined in and called out similar insults. [ 7 ] Suddenly Mr. Miller and Mr. Thomas were coming at them. Mr. Watkins turned and saw Mr. Thomas; he pushed Ms. Crowe and she started to walk away. She turned as she was walking and saw the confrontation. She said Mr.

Thomas reached for Mr. Watkins, grabbed the back of his shirt and spun him around. Mr. Watkins called out “who are you”. Mr. Thomas threw the first punch and Mr. Watkins tried to protect himself by putting his hands up. She said he tried to get some swings in but it was clear his shoulder hurt. [ 8 ] Ms. Crowe said the two men were on the ground almost immediately. Mr. Thomas was on top of Mr. Watkins and was punching him. He said as the fight came to an end, a vehicle stopped and a woman asked if they needed help. Mr. Miller told her to mind her own business and keep going. Ms. Crowe helped Mr. Watkins up.

She went to get the car, realizing he needed medical attention. They ended up going to the hospital. She said the bone of his shoulder was protruding and clearly dislocated. [ 9 ] In cross-examination, Ms. Crowe denied that Mr. Watkins was intoxicated. She saw him drink about two drinks while she was there but did not finish the second one. He was playing drums and drinking between sets. [ 10 ] In cross-examination, Ms. Crowe said that she recognized Mr. Thomas’ voice calling out the insults to them. However, Mr. Watkins did not look because he did not know Mr. Thomas or Mr.

Miller and did not realize they were addressing the two of them. It was Ms. Crowe who called out “that’s Mark and Danny” when Mr. Thomas was charging Mr. Watkins. She denied that Mr. Watkins said anything to the two men before he was attacked. [ 11 ] There were some differences between Ms. Crowe’s statement to the police and her evidence in court. However, those differences were inconsequential. I accept that everything happened quite rapidly. She honestly acknowledged that her memory was not entirely clear. She accepted that Mr. Watkins may have said something rude back to Mr. Thomas and Mr. Miller.

However, she did not actually hear him say anything. [ 12 ] Mr. Watkins testified that he was socializing with some friends at a jam session at the Westsyder Pub. He called Ms. Crowe to pick him up as he had just finished playing. Ms. Crowe came in, had a drink and then ordered a second one. As it came, she told Mr. Watkins she had to leave and told him that it was because someone there made her uncomfortable. He offered to walk her home. Mr. Watkins said he left half of his own drink on the table and left to walk her to her place.

As they were walking down the sidewalk past the smoking area, there were a lot of people. He could hear yelling and swearing but he did not pay much attention. [ 13 ] He said there were two men running toward them. He looked back and Ms. Crowe called out “oh my god, it’s him”. Mr. Watkins put his hand toward her because he did not know what was happening. The next thing he knew there was a tug on his shirt and he was on the ground with someone on top of him. [ 14 ] Mr. Watkins did not recall what was called out in the yelling and swearing.

He said he had not been paying attention to it and it was not uncommon for it to be loud out in the smoking area. [ 15 ] Mr. Watkins tells an entirely different version of what happened once he was on the ground. He said that he was in so much pain that he could only lie there while he was being punched. He said he was unable to move. [ 16 ] Mr. Watkins said that he remembered getting up and starting to walk away. A car pulled up and he heard someone talking, but the car drove away. He had to lean against the pole. The two men were walking back to the pub and Ms. Crowe was walking toward the house. Mr.

Watkins’ evidence was inconsistent in this regard, saying first that she was walking and then running. [ 17 ] Mr. Watkins said Ms. Crowe came and gave him a ride home and he went to the hospital from there. He had bruising on his right thigh from his groin to his knee, scrapes, and bumps on his head. His shoulder is still not completely healed and he was off work for a couple of months because he could not move. [ 18 ] Mr. Watkins agreed in cross-examination that Ms. Crowe pointed out Mr. Miller while they were still in the pub, explaining that he was the reason she wanted to leave. She did not point out Mr.

Thomas and Mr. Watkins did not think she saw him.

[ 19 ] Mr. Watkins’ evidence was a bit confused about what led up to the altercation on the sidewalk. In his statement to the police at the hospital, he did not say that the two men were running at them. He then recalled that he had turned around and told them to go away. He had also failed to mention to the police that he had been pummelled and punched. I do not find this to be a particularly egregious omission for a statement taken when he is in the hospital in a lot of pain, on pain killers and having consumed alcohol that evening. His injuries were evident.

I find his evidence in that regard to be reasonable and credible. [ 20 ] There was a good deal of cross-examination about whether events took place 500 metres or 1000 feet or half a block or a city block away from points of reference. Witnesses are notoriously poor with distances. This was both exacerbated and exemplified by counsel repeatedly referring to a metre being two feet. I find this scattered and inconsequential evidence to be unhelpful in determining credibility or facts. [ 21 ] Mr. Watkins denied saying anything to Mr. Thomas to provoke him into the fight. He denied lunging at Mr. Thomas first.

He maintained that he was pulled from behind and he could not move after he hit the ground. [ 22 ] I found Mr. Watkins’ evidence to be exaggerated when he said that he was completely unable to move. Ms. Crowe had testified he returned the punches blow for blow once he was on the ground. I accept that evidence as true. [ 23 ] With respect to the inconsistency between Mr. Watkins and Ms. Crowe about where she was during the altercation, I find that the alcohol he had consumed has distorted his recollection, making it somewhat unreliable on its own. Ms. Crowe testified that she had helped Mr.

Watkins to his feet and then went to her home for the car to take him for medical care. He was confused when he testified that he called Ms. Crowe for a ride home as he leaned against the telephone pole. I accept that he saw her moving toward her home but find that it was after she had helped him to his feet and she was going to collect the car. I find this also explains why neither she nor Mr. Watkins called the police at the scene of the altercation but waited until they were at the hospital. [ 24 ] Mr. Thomas and Mr. Miller had a barbecue at Mr. Thomas’ home that evening. Mr.

Thomas had three beer before leaving for the Westsyder Pub around 11:00. He walked into the pub and ordered a beer. He went to the smoking area after seeing Ms. Crowe in the pub with another man. [ 25 ] Mr. Miller eventually joined Mr. Thomas in the smoking area. Mr. Thomas wanted to leave but Mr. Miller did not. About 5 or 10 minutes later, Ms. Crowe walked around the front of the smoking area with Mr. Watkins. [ 26 ] Mr. Thomas acknowledged that Mr. Miller began yelling profanities at Ms. Crowe but denied saying anything himself. Mr.

Watkins turned upon hearing the profanities and yelled “suck it” and gestured at his groin area. Incredibly, Mr. Thomas testified that he walked towards Mr. Watkins because he was concerned Mr. Watkins would think it was Mr. Thomas making the profane comments. He wanted to reassure Mr. Watkins that he had nothing to do with it. This testimony entirely lacked any air of reality. Certainly if Mr. Watkins and Mr. Miller were close enough to hear each other exchanging insults, they were close enough to hear Mr. Thomas call out something like “it wasn’t me”. Mr.

Thomas also had the option to simply ignore what was going on and walk away from Mr. Miller. He did not. [ 27 ] Mr. Thomas said as he approached, Mr. Watkins postured to throw a punch and came at him. Mr. Thomas restrained Mr. Watkins and they wrestled to the ground. He acknowledged that he did grab Mr. Watkins by the shirt. He held Mr. Watkins down until he agreed to settle down. He said he let Mr. Watkins up and walked away. He denied punching Mr. Watkins at any time. [ 28 ] While testifying about Ms. Crowe’s infidelity, Mr. Thomas said he was in shock. He agreed that he was upset but more hurt than angry.

I found Mr. Thomas to be evasive for no apparent reason during the course of this cross-examination. [ 29 ] Also incredibly, Mr. Thomas said that while there was no one standing around them when Mr. Watkins apparently gestured at them, Mr. Thomas did not know who he was directing it toward. This is despite Mr. Miller yelling profanities while standing next to Mr. Thomas. [ 30 ] Mr. Jensen acknowledged that Ms. Crowe was credible but reliability was in issue. He argued that Mr. Watkins had credibility issues. I agree that Mr. Watkins had credibility issues.

He tended to overstate the evidence to cast himself in the best light. I find that Ms. Crowe was entirely credible although it was difficult for counsel to illicit evidence from her. Mr. Jensen argued that her evidence was radically different from what she told the police. I disagree. I found the differences between her statement and her viva voce testimony to be inconsequential. Mr. Watkins’ evidence was different from his statement but this is explained by the alcohol he consumed, the painkillers he had been given, and his tendency to exaggerate the evidence. [ 31 ] Mr. Thomas was not very credible.

His version of the events was implausible and lacked the air of reality. He acknowledged that he was angry over the recent break-up with Ms. Crowe over infidelity that left him embarrassed and hurt. He acknowledged that his friend was yelling profanities at Ms. Crowe while she walked by. For men approaching their 50s, this is entirely unacceptable behaviour. His explanation for approaching Mr. Watkins also lacks any air of reality. [ 32 ] I find that Mr. Watkins and Ms. Crowe were walking past the smoking area outside of the Westsyder Pub when Mr. Miller began yelling insults at Ms. Crowe. Mr. Miller and Mr.

Thomas then decided to confront the man Mr. Thomas seemed to believe was Ms. Crowe’s new partner. As they approached Mr. Watkins and Ms. Crowe, Ms. Crowe called out who they were. Mr. Watkins reacted by pushing her out of the way. As he was turned away from Mr. Thomas, he was pulled by the shirt. Mr. Thomas pulled him to the ground at which point Mr. Watkins injured his shoulder. The two men then began to exchange blows. [ 33 ] The fight eventually ended, and Mr. Thomas got up to let Mr. Watkins up. Mr. Miller and Mr. Thomas returned to the Westsyder Pub. Ms. Crowe helped Mr.

Watkins to his feet and left him leaning against the pole while she went for her vehicle to take him to the hospital. [ 34 ] The assault upon Mr. Watkins was unprovoked. Whether he yelled an insult back at the men or not before Mr. Thomas pulled him to the ground, is not relevant. It does not constitute any valid excuse for Mr. Thomas’s actions.

[ 35 ] Mr. Watkins did not consent to engage in a fight or provoke one. Mr. Thomas had no reason to pull Mr. Watkins to the ground or to engage in a fight with him. His and Mr. Miller’s conduct was entirely inappropriate and entirely the cause of this altercation. [ 36 ] I am satisfied beyond a reasonable doubt that the Crown has proved Mr. Thomas assaulted Mr. Watkins and I convict him of that charge. ____________________________ S.D. Frame Provincial Court Judge