R. v. Spooner, 2014 BCPC 314 (CanLII)
Citation: R. v. Spooner Date: 20141217
Registry: Courtenay
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
KEVIN RONALD SPOONER
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Crown: R. Ellsay
Counsel for the Defendant: J. Havellar
Place of Hearing: Courtenay, B.C.
Date of Hearing: December 8, 2014
Date of Judgment: December 17, 2014
The Allegation
[1] The Crown seeks the imposition of a peace bond pursuant to section 810 of the Criminal Code. That section authorizes the imposition of a peace bond “… on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse …”. “Personal injury” includes psychological harm which is “… more than merely transient or trifling in nature …”: Haydock vs Baker 2001 YKTC 502; [2001] YJ #37; 44 CR (5th) 39 @ paragraph 18.
[2] In this case, the Information alleges that Marsha and Dave Webb have reasonable grounds to fear and do fear that Mr. Spooner will cause personal injury to them “… in that Kevin Ronald Spooner threatened Marsha Webb and Dave Webb from the 1st day of January, 2014 to the 9th day of May, 2014, inclusive, at or near Courtenay, British Columbia …”.
[3] The Crown carries the onus of proof, but the standard of proof is on a balance of probabilities: Begeron vs Vaneltsi 2012 YKSC 19; [2012] YJ #25 @ paragraph 14; Haydock vs Baker @ paragraph 17.
The Evidence
[4] Mr. & Ms. Webb are the owners of a minor-league hockey team, the Comox Valley Glacier Kings. Mr. Spooner is one of the owners of another team in the same league, the Campbell River Storm. In late 2013 or early 2014, a player who had formerly played for the Storm was recruited by and joined the Glacier Kings. Mr. Spooner felt a sense of grievance over this, and thought that compensation was due to the Storm under the league rules. For the present purpose, it does not matter whether his sense of grievance was justified, nor whether the Storm was entitled to compensation.
[5] Mr. Webb is 66 years old, and Ms. Webb is about the same age. Both are small of stature. Mr. Spooner’s age was not stated in the evidence, but he appears to be in his mid-40’s. He is a large man.
[6] Mr. Webb attended a hockey game between the Glacier Kings and the Storm at the Storm’s home arena on January 24, 2014. Mr. Webb says that:
a. Just before the start of the third period, he encountered Mr. Spooner on the public concourse behind the spectator seats. Mr. Spooner was very agitated and shouted profanities at him. Mr. Webb denies that he responded in kind.
b. After about 5 minutes, Mr. Spooner walked away from him. As he did so, Mr. Spooner struck Mr. Webb a blow with his open hand behind Mr. Webb’s ear. Mr. Webb was not hurt by the blow, but he was startled.
Mr. Spooner explained that he was upset over the player issue, and that he opened the encounter by telling Mr. Webb that “We need to have a meeting about this as hockey people, man to man”. Mr. Spooner acknowledges that voices were raised, but says that Mr. Webb used as much bad language as did Mr. Spooner. Mr. Spooner denies striking Mr. Webb in any way.
[7] After the game, Mr. Spooner confronted Mr. Ewing, the Glacier Kings’ coach, outside the arena as the Glacier Kings were boarding the team bus. Mr. Ewing and Mr. Brett, an assistant coach of the Glacier Kings, say that Mr. Spooner removed his jacket and tie and, by words and gestures, challenged Mr. Ewing to a fist fight. Mr. Spooner says that he does not recall when he removed his jacket and tie, and denies issuing a challenge. Mr. Ewing and Mr. Brett retreated to the team bus and the incident ended. Mr. Ewing reported the incident to Mr. & Ms. Webb.
[8] Two days later, on January 26, 2014, a meeting of the league governors and owners took place. Mr. Webb said that the meeting was in Nanaimo. Ms. Webb said that it was in Duncan. Mr. and Ms. Webb and Mr. Spooner attended, along with many others. While Mr. Spooner was out of the room, the league president asked Mr. and Ms. Webb about the incident of January 24. Mr. Spooner returned to the room as they were giving their account of that incident. Mr. Spooner was offended by the fact that the question was being discussed in his absence. Mr. and Ms. Webb said that he began shouting profanities. Ms. Webb said that Mr. Spooner said to her: “If I hit you, you won’t get up”. Significantly, Mr. Webb made no reference to any such remark in his description of the encounter. Mr. Spooner denies the remark attributed to him by Ms. Webb. He says that, when he was accused of striking Mr. Webb on January 24, he replied to the effect that, if he had struck Mr. Webb as alleged, Mr. Webb would have suffered some injury.
[9] In April, 2014, Mr. Spooner and Mr. Ewing were both in Port Alberni to provide coaching assistance to the local hockey team (which is in a different league from the Glacier Kings and the Storm). Mr. Ewing says that, at the end of the meeting, Mr. Spooner asked everyone to leave the room except Mr. Spooner, Mr. Ewing and Mr. Stone (the Storm’s coach), so that the three men could have a private conversation, which Mr. Spooner described as a “hockey meeting”. After the others left, Mr. Spooner voiced his grievance over the player mentioned above, and demanded compensation. He became progressively more angry, and pushed Mr. Ewing up against the wall. As he did so, Mr. Stone intervened and Mr. Spooner said: “You’re lucky. I was going to smash you in the face”. Mr. Ewing described the push as “not super hard”, but hard enough to knock him off balance and against the wall. Mr. Spooner admits that he lost his temper and that there was a vigorous argument, but says that Mr. Ewing responded in kind. Mr. Spooner admits pushing Mr. Ewing against the wall, but describes it as a gentle push. In reference to the encounter, he said “This is hockey - feelings run high”.. He was not asked about the face-smashing remark attributed to him by Mr. Ewing. Mr. Ewing later reported this incident to Mr. and Ms. Webb. Mr. Ewing said that he does not fear Mr. Spooner.
[10] Mr. and Ms. Webb have not encountered Mr. Spooner since January 26, 2014.. They no longer attend hockey games in Campbell River because they fear such encounters.
Assessment of the Evidence
[11] I make the following findings of fact, each on a balance of probabilities:
a. On January 24, 2014, Mr. Spooner confronted Mr. Webb on the concourse at the Campbell River arena. Mr. Spooner was angry over the recruitment of the player in question and intent on pressing his claim for compensation. He shouted profanities at Mr. Webb and behaved in a very aggressive manner. As he parted from Mr. Webb, he struck him a trifling blow on the head which caused no injury.
b. Later on the same day, Mr. Spooner confronted Mr. Ewing outside the arena and, by words and gestures, expressed his willingness to engage in a fist fight. No fight ensued because Mr. Ewing displayed appropriate self-restraint.
c. At the league meeting on January 26, 2014, Mr. Spooner said to Ms. Webb something like “I can’t possibly have struck your husband, because, if I had, he would not have got up afterwards”. Mr. Spooner intended this as a response denying the allegation of assault, not as a threat directed to Ms. Webb.
d. In April, 2014, Mr. Spooner confronted Mr. Ewing over the player issue. During that confrontation, he pushed Mr. Ewing (who is a robust individual, 31 years of age) hard enough to cause Mr. Ewing to lose his balance. After Mr. Stone intervened, Mr. Spooner said something about wanting to smash Mr. Ewing in the face. However, that was not a statement of intention about a future action (which would be necessary to constitute a threat), but rather an expression of frustration about an intended action which had not been completed.
e. On each of the occasions described, Mr. Spooner completely lost his temper and employed foul language in a loud tone of voice. For the present purpose, it does not matter whether any of Mr. or Ms. Webb or Mr. Ewing also lost their temper on the occasions in question. Mr. Spooner believes that his conduct is defensible because “this is hockey and feelings run high”. A propensity for violence and a gift for physical intimidation are highly-valued qualities among hockey players. Mr. Spooner believes it appropriate to exhibit those qualities in the course of business dealings off the ice, and sought to intimidate Mr. and Ms. Webb and Mr. Ewing on the occasions described. It is reasonable to infer that he is likely to behave in similar fashion if he encounters Mr. or Ms. Webb in future. However, there is no reason to believe that he is likely to inflict any physical injury on either Mr. or Ms. Webb.
f. Mr. & Ms. Webb suffered material psychological stress on the occasions described, and continue to be affected by it. They honestly fear that Mr. Spooner may do them harm if they encounter him again. Their fear of encounters similar to those on January 24 and 26 is reasonable. Their fear that Mr. Spooner will cause them a physical injury is not. Mr. Spooner intended to intimidate them. He did not intend to cause them physical injury.
Analysis
[12] It is to be noted that the Information alleges that Mr. and Ms. Webb have reason to fear Mr. Spooner “… in that Kevin Ronald Spooner threatened Marsha Webb and Dave Webb … at or near Courtenay, British Columbia …”. The evidence discloses only two utterances which might be described as threats, one by Mr. Spooner to Ms Webb on January 26, and one by Mr. Spooner to Mr. Ewing in April. Neither was uttered at or near Courtenay. I have concluded that Ms. Webb misheard Mr. Spooner on January 26, 2014, and that he did not utter the threat which she attributes to him. Mr. Spooner’s remark to Mr Ewing in April was not a threat, and was not addressed to Mr. or Ms. Webb.
[13] In R vs B.(G.) 1990 CanLII 7308 (SCC), [1990] 2 SCR 30, the court held that it is essential that the Information identify the “transaction” which is alleged to constitute the offence (in this case, uttering threats to Mr. and Ms. Webb). If this were a prosecution, I would be forced to the conclusion that the Crown has not proven the “transaction” alleged, and that the Information should be dismissed for that reason.
[14] However, I think that different principles should apply in relation to an application for a peace bond. As Chief Judge Stuart remarked in Haydock vs Baker @ paragraph 38:
Peace bonds are civil or quasi-criminal in nature. They are focussed on prevention, not punishment. Accordingly, the higher standards required for the exercise of a punitive power should not be applied when considering the exercise of a preventative power.
For that reason, I think that I should adjudicate the case on its merits, rather than on the pleadings.
[15] Mr. Havellar points out that there have been no further incidents since April, 2014, and that the last incident involving Mr. or Ms. Webb directly was on January 26, 2014, more than 10 months ago. As a result, he says that it is not reasonable for Mr. and Ms. Webb to fear Mr. Spooner today, and that no peace bond can be ordered for that reason. In many cases, that would be a compelling line of argument. His Honour Judge Stansfield (as he then was) espoused a similar line of reasoning in Regina vs P.A.O. 2002 BCPC 560; [2002] BCJ #2975 @ paragraph 70.
[16] If I were persuaded that Mr. Spooner understands the error of his ways, I would be inclined to Mr. Havellar’s point of view. However, the tenor of Mr. Spooner’s evidence precludes any such inference. He is clearly of the opinion that, when hockey issues are at stake, physical intimidation is an appropriate communication strategy. Encouraged by the traditions of his sport, he believes that aggressive confrontations, in which his size and bad temper are intimidating factors, are an appropriate way of resolving disputes. So, if he finds himself again in the presence of Mr. or Ms. Webb, he is likely to behave in the future as he has in the past.
[17] In considering his future course of action, Mr. Spooner would be well advised to bear in mind that he committed a criminal assault of Mr. Webb by striking him, and of Mr. Ewing by pushing him, and that he would probably have been convicted of those assaults if the Crown had chosen to charge him. Civilized society does not live by the standards of the hockey rink, where such assaults are an accepted part of the game.
[18] It is the right of every citizen to go about her lawful business without fear of violence. Mr. Spooner’s behaviour on the occasions in question was calculated to instil such fear. Mr. and Ms. Webb should be free to watch their team play in Campbell River without fear of confrontation by Mr. Spooner. A peace bond is appropriate to secure that right.
Disposition
[19] In their submissions, counsel did not address the terms of the proposed peace bond. I suggest a recognizance in the amount of $500, without deposit or surety, for a term of one year on the following conditions:
a. Mr. Spooner is to keep the peace and be of good behaviour.
b. Mr. Spooner is not to communicate directly with Mr. or Ms. Webb in any way. Mr. Spooner may communicate indirectly with Mr. or Ms. Webb only in writing, only through a member of the coaching staff of the Storm, and only in relation to hockey business matters.
c. Mr. Spooner is not to approach within 10 metres of either Mr. or Ms. Webb, and is not to approach within 500 metres of their home.
If counsel agree that those are the appropriate terms, the peace bond may be drawn up and entered as indicated. If counsel do not agree, they may schedule a further hearing to speak to terms.
December 17, 2014
______________________
T. Gouge, PCJ