R v. Fowler Date:, 2016 BCPC 380

Citation: R v. Fowler Date: 20161205 2016 BCPC 380 File No: 98512-1 Registry: Lillooet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LISA MARIE FOWLER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Catriona Elliott Counsel for the Accused: Mr. Kenneth Sommerfeld Place of Hearing: Lillooet , B.C. Dates of Hearing: February 11, June 10, 2016 and October 4, 2016 Date of Judgment: December 5, 2016

[ 1 ] Lisa Mae Fowler is charged with assaulting Karen Peters with a weapon and assault causing bodily harm to her. [ 2 ] At the commencement of the trial, Crown and Defence entered admissions. On January 1, 2014, Ms. Peters was charged with assaulting Ms. Fowler. Ms. Peters entered an Undertaking which included a no-contact provision. Ms. Peters was then sent to Alternative Measures, which resulted in a Stay of Proceedings on May 13, 2014 after partial compliance with the Alternative Measures plan. There is no indication on the Crown file or court file that Ms.

Fowler was notified of the termination of the no-contact Undertaking. [ 3 ] On June 25, 2014, Karen Peters attended a birthday party for a friend of hers on Thompson View in Spences Bridge. This is near where Ms. Fowler resides, which Ms. Peters knew. Ms. Peters knew Ms. Fowler from when they went to high school together in Vancouver, although they did not really know each other that well. It was only after they started talking when they lived in Spences Bridge that they realized they had gone to school together. Ms. Peters visited Ms. Fowler in her home twice after that. [ 4 ] On June 25, Ms.

Peters stayed at her friend’s birthday party for about two hours, leaving around 11:00 p.m. She left with Arnie Oram and his wife. She helped them carry their coolers to their house two doors away from the party. While passing the yard between the Oram home and the party, Ms. Fowler’s dog came running out of the yard aggressively. The yard belonged to Larry Schmidt. Both Ms. Peters and Mr. Oram said something to Ms. Fowler about controlling her dog. Ms. Fowler responded that the dog would not bite. Some words were exchanged and then Ms.

Peters and the Orams continued on to the Oram home. [ 5 ] Arnold Oram confirmed that he was at a neighbour’s birthday party. He, his wife and Ms. Peters were the last to leave. Ms. Peters offered to help him with one of the two coolers he was taking home. As they passed their neighbour’s lot, Ms. Fowler’s dog came out. Mr. Oram testified that words were exchanged because they had encountered problems with Ms. Fowler’s dog previously. Once they reached their home, Mr. Oram offered Ms. Peters a ride but she said she preferred to walk. [ 6 ] Ms. Fowler testified that she was visiting her friend, Larry Schmidt.

After about 10 minutes, the dog went out barking at somebody. She said that her dog is not an aggressive dog and he is off-leash trained. She said everyone knows if her dog barks, to leave him alone and Ms. Fowler would call him back. She also said everyone knows that if he barks they are to tell him to go find his ball to distract him. Ms. Peters denied knowing anything about these procedures. Ms. Fowler related an incident that same evening before Ms. Peters and the Orams came along where her dog had run out at another person. The person stomped at her dog.

Words were exchanged between her and this person as well, when her dog went at him. Obviously, the dog is not as well-trained off-leash as Ms. Fowler says and presents as a nuisance to others. [ 7 ] When her dog went out to bark at Ms. Peters and the Orams, Ms. Fowler went out to call him back. She said she only saw the Orams and they began yelling at her. She yelled at them to shut up. She heard Ms. Peters’ voice. That was when Ms. Peters came out from between the Orams. Ms. Fowler then testified regarding events that unfolded which had not been put to Ms. Peters in cross- examination. She alleged that Ms.

Peters came at her with her fists down and angled toward Ms. Fowler. This does not accord with Mr. Oram’s or Ms. Peters’ evidence. Ms. Peters was carrying a cooler as well, which would not have allowed her to raise her fists. I do not believe Ms. Fowler’s evidence. [ 8 ] Ms. Fowler described a far more foul conversation between the two women than Ms. Peters testified about which, again, had not been put to Ms. Peters in cross-examination. I find that she invented the encounter to justify what ensued. [ 9 ] Ms. Peters said she dropped the cooler off at the Oram home.

The Orams offered her a drink, which she declined. She said goodnight and then started walking home. Ms. Peters headed off in the direction going away from Mr. Schmidt’s property. As she was leaving, she heard Ms. Fowler yell “you should die you fucking nigger; I should kill you, you fucking nigger” and then continuing to call Ms. Peters a “fucking nigger”. Ms. Fowler’s voice was angry and loud. Although Ms. Peters could not see her, Ms. Peters recognized her voice. [ 10 ] Mr. Oram was out in his yard and Ms. Peters was still in his driveway. He heard Ms. Fowler call Ms. Peters a “fucking nigger”. Mr.

Oram could not see who said those words, but he was familiar with Ms. Fowler’s voice. He was concerned that something might happen. On cross-examination, Mr. Oram agreed that he did not have his hearing aids in. He heard the initial words spoken but not anything said subsequently. However, he definitely heard Ms. Fowler say “fucking nigger”. [ 11 ] Ms. Fowler testified that she was leaving Mr. Schmidt’s trailer to return home. She said that as she was leaving, she told her dog to stay away from “that nigger piece of shit”. She claimed that she did not know Ms. Peters was there.

She also said the word “nagger” came out of her mouth, not “nigger”. [ 12 ] This was entirely unbelievable evidence. Ms. Fowler rambled about the various languages her dog understood and the various

definitions of “nagger” from the dictionary. She then said that “nigger” is a proper word meaning a dark skinned person. That may be true, but it is and always has been a contemptuous term for a black or dark skinned person. It remains a racist and offensive term today. I do not believe Ms. Fowler’s evidence that she said nagger and reject it entirely. I accept Mr. Oram and Ms. Peters’ evidence about what they heard Ms. Fowler say and that she intended to direct those words toward Ms. Peters. [ 13 ] Ms. Peters turned around to confront Ms. Fowler after Ms.

Fowler made the racial slurs and said that she should kill Ms. Peters. Ms. Peters went to the property where Ms. Fowler was standing. Ms. Peters approached Ms. Fowler. She asked her why Ms. Fowler was saying the things she was saying. Ms. Peters said that her voice level was normal and she was confused because she did not understand why Ms. Fowler would say those things. She concedes that her body language might have been a bit aggressive but she did not raise fists or do anything to Ms. Fowler. Even when her emotions were elevated during testimony, Ms. Peters maintained an almost flat tone.

Her expression, body language and volume revealed her emotions. I find that her volume and tone were aggressive when she confronted Ms. Fowler even if her emotions were not. [ 14 ] When Ms. Peters was about a foot from Ms. Fowler, Ms. Fowler struck her in the head with a large glass mug that Ms. Fowler

had been holding behind her back. She hit Ms. Peters just above the ear on the left side of her head. She struck her three times before the glass shattered. Ms. Peters grabbed Ms. Fowler by the hair, pulled her to the ground and punched her in the face. She believes she punched Ms. Fowler two times. Then she tried to drag Ms. Fowler off the property by her hair. Ms. Fowler was swinging her hand around with the broken mug handle in it. This slashed Ms. Peters in the face and made her stop dragging Ms. Fowler. It was an appalling, barbaric scene. [ 15 ] Ms. Fowler’s version is quite different.

She said that after she called her dog back, it jumped into Mr. Schmidt’s motorhome. She last saw her mug in Mr. Schmidt’s hand. He was above her in the doorway. She was intending to recover her mug from Mr. Schmidt when she saw a startled look on his face. She turned and Ms. Peters “smoked me in the face out of nowhere”. She said Ms. Peters then grabbed her by the throat, hit her in the face and split her eye open. [ 16 ] Ms. Fowler called out to Mr. Schmidt for help. She was on the ground being dragged away. She does not know how the mug was broken.

She concedes that if it was in her hand, she would have been swinging as she was being dragged. [ 17 ] Ms. Fowler said she hollered for her dog who was in the motorhome with Mr. Schmidt. Although he is not trained to attack, he will defend Ms. Fowler. She said he has very sharp dewclaws which she believes may have been what cut Ms. Peters’ arm. [ 18 ] Mr. Oram said that that he heard screaming and his neighbour saying something so he thought he had better investigate. What he found was “not very pleasant”. There was a lot of blood. He had to get Ms. Peters to his home right away. He yelled at his wife to get Ms.

Peters in the house. As a fire chief with CP Rail for 36 years, he knew that the first responders he worked with would be faster than waiting for 911. He called an ambulance and the police. His responders came to assist. [ 19 ] On cross-examination, counsel explored the events that led to the undertaking Ms. Peters had been bound by until May, 2014. This was further explored in re-examination. Both women had been at a party. Ms. Fowler had called Ms. Peters’ partner a pedophile. Ms. Peters lost her temper. Ms. Peters struck Ms. Fowler approximately five times. Despite the despicable comment made by Ms.

Fowler, this was a disproportionate and horrific response. [ 20 ] As a result of the assault, as the agreed facts stated, Ms. Peters was sent for extra judicial measures. Part of those measures were to pay $60 to Ms. Fowler and to prune some trees for her. There were 10 trees to prune. Ms. Peters paid the $60 and pruned six of those trees. Then Ms. Fowler changed her mind and wanted something else done besides the other four trees. This had not been the agreement under the extra judicial measures, so Ms. Peters declined.

She was entitled to do so. [ 21 ] Because of the history between these two women, Lisa Van Peteghen was called to testify about the outcome of the restorative justice measures taken in the case where Ms. Peters was the accused and Ms. Fowler the victim. She testified that she received the referral for the restorative justice plan in the middle of March, 2014. She attempted to set up a circle but could not bring the women together. Ms. Van Peteghen testified about the process she goes through with a typical plan.

The most important part of the process is the contract which, in this case, involved some tree trimming. Some of the terms were agreed and others were not. Because of weather, not all of the work could be completed. Also, Ms. Fowler changed some part of the contract but Ms. Peters declined to perform it. None of this was particularly relevant to resolve what transpired in this case. [ 22 ] Evidently a mediation was also attempted by Lisa Van Pettigan, who was supervising the extra judicial measures. Ms. Peters had been prepared to do that but does not know why it did not occur. Ms.

Peters believed that she had been discharged from her obligations, which is confirmed by the stay ultimately entered. Ms. Fowler was not advised that the no contact term had expired. [ 23 ] I do not believe Ms. Fowler. Mr. Sommerfeld argued that people can be quite incredible without being dishonest. In this case, I find that Ms. Fowler strains credulity. He asked whether I was comfortable convicting her or whether I wondered. I do not wonder. It is not a matter of whether I am comfortable with convicting someone. The question is whether the Crown has proved its case beyond a reasonable doubt. [ 24 ] As Ms.

Elliott argued, Ms. Peters was straight forward and logical. Her description of the walk down the street with the cooler was credible. [ 25 ] Ms. Peter’s version of what transpired with the cooler is the same as Mr. Oram’s evidence. So too is what Mr. Oram heard Ms. Fowler calling Ms. Peters when Ms. Peters left his home. [ 26 ] Ms. Fowler, on the other hand, described an initial encounter on the street that could not have happened if Ms. Peters were carrying the cooler. She could not have raised her fists to Ms. Fowler. Despite saying that she was frightened by Ms. Peters, Ms. Fowler provoked Ms.

Peters by calling her a “nigger” and intimating Ms. Fowler should kill Ms. Peters. [ 27 ] Then there is the incredible testimony Ms. Fowler gave with respect to whether she said “nigger” or “nagger” and whether “nigger” was an acceptable word or “nagger” was a word she used to warn her dog of danger. I do not believe this evidence. The words Ms. Peters heard spoken were not directed at the dog in any event. [ 28 ] I am satisfied that Ms. Fowler provoked Ms. Peters to her bad temper and then assaulted Ms. Peters with the glass mug when Ms. Peters confronted Ms. Fowler on Mr.

Schmidt’s property. [ 29 ] I am satisfied that the Crown has proved beyond a reasonable doubt that Ms. Fowler assaulted Ms. Peters when she smashed her in the head with the mug, causing significant cuts and bleeding to Ms. Peters. The significant cuts are bodily harm. I convict Ms. Fowler on these charges. ____________________________________ S.D. Frame

Provincial Court Judge