The trial of a man who allegedly spit on a woman at a Nelson coffee shop during the COVID-19 pandemic came to a close on Aug. 23.
Jeremy Undershute was charged with assault against Rhonda Comeau at Empire Coffee on Nov. 20, 2020, following an argument over the wearing of masks. Comeau was an employee of The Adventure Hotel, which includes Empire Coffee, and Undershute was a customer.
Judge Robert Brown conducted the trial over four non-consecutive days — Feb. 1, May 29, June 23, and Aug. 23 — in Nelson and Castlegar courts. A hearing was scheduled for Aug. 30 in Nelson that will determine when Brown will deliver his verdict.
Charlotte McGarry, who was at work as a server at Empire Coffee at the time of the incident, testified that she went to investigate a noisy commotion on the sidewalk outside the front door. She said a man, whom she identified in court as Undershute, was shouting about his opposition to the mask mandate that was in effect at the time.
McGarry testified that she unsuccessfully tried to convince him he had to wear a mask if he came inside. He said he would put on a balaclava, but he was still arguing loudly, so McGarry went to get help from Comeau, who is the hotel’s financial manager.
Comeau testified that McGarry was “visibly shaken,” so she left her office and confronted Undershute, who was entering the building wearing a balaclava. She told him to leave because he was scaring the staff. She said he was rude and “bullying,” and that he raised his balaclava and spat on her.
“I could see the droplets on my coat,” she testified.
Whether he spat directly on her, or spat on the floor in front of her as one witness stated, would become a contentious issue later in the trial.
Comeau testified Undershute then left the building and she told her staff to call 911. She followed him up the street and saw the police apprehend him at the Kootenay Co-op. She gave a statement to the police, changed her shirt, and walked up Vernon Street on an errand when she started to feel pain and shortness of breath. She went back to the hotel manager’s office and then suffered a heart attack.
She had several more heart attacks and a cardiac arrest while in the ambulance to Kelowna, she said. She was hospitalized for several days and took months to recover.
Crown counsel Keven Schecter did not attempt to connect the heart attacks to the spitting incident.
When Comeau testified that she gave the Nelson Police Department two videos of the spitting incident from two surveillance cameras at Empire Coffee, defence lawyer Don White interrupted to say that he had seen only one video, not two. Schecter admitted that he too was surprised by this evidence because he had only seen one video.
White said he would need to see the second video before the trial could continue because without it he would not know how to cross-examine Comeau.
So the trial was adjourned to give the Crown time to sort this out with Comeau and the police.
Two trials in one
At the resumption of the trial on May 29, it was made clear that video evidence from only one of Empire Coffee’s two cameras had been saved and given to the police. The other had automatically been over-written on the surveillance system because, according to Comeau’s testimony, they have to be saved within four-to-seven days.
This led defence lawyer White to ask the judge for a stay of proceedings based on lost evidence, citing Section 7 of the Charter of Rights and Freedoms.
The judge concluded that he could not rule on this request without first hearing all of the evidence, so from this point the trial split into two issues: the spitting incident, and whether the lost video should negate the whole trial.
When Brown rules on the case, he will decide whether there should be a stay of proceedings due to lost evidence. If he does not grant a stay, he will rule on whether Undershute is guilty of assault.
Did Undershute commit assault?
Comeau testified that Undershute spat on her, but Shauna Fidler, a customer at Empire Coffee, testified that she saw Undershute spit on the floor in front of Comeau, not on her.
The surveillance video is unclear on this question, although it shows Comeau stepping back in order, Comeau testified, to try to avoid the spit. McGarry did not witness the incident, and no other witnesses were called to testify on the direction of the spit.
Undershute did not take the stand.
Schecter argued that whether or not Undershute spit toward her or on her, it was an assault. He said raising your fist at someone as though you were going to punch them is an assault, and he cited section 265 (1) (b) of the Criminal Code of Canada.
“We are talking about right when COVID started,” Schecter said. “A person purposely taking off their mask and spitting in the direction of another person, whether or not that spit hit that person, is clearly an assault.”
White stated that the Crown had not proven beyond a reasonable doubt that Undershute spat on Comeau, although White never disputed that spitting occurred.
He said Comeau had proven herself an unreliable witness, citing testimony in which she contradicted herself about the volume of spit, her movements during the incident, the number of videos, the existence of photos, and the pandemic protocols being followed in the cafe. White said Comeau testified she was calm during the spitting incident but Fidler described her as shouting angrily.
“There are many glaring contradictions here,” he said.
These evidence and arguments about whether an assault was committed will go nowhere if the judge agrees with White that the missing video prejudiced Undershute’s ability to defend himself.
The missing video
When court resumed after adjourning to investigate the second video, Comeau testified that in her earlier testimony she said she had saved the second video and given it to police, but now realized she had not. She said the process of giving videos to police was interrupted by her heart attack and hospitalization.
“I thought I had done the second video. In my mind I thought I had. Maybe I watched it and did not record it.”
Comeau testified that the second video camera would have shown the doorway where the incident occurred much more clearly than did the video that was saved, because of a better camera angle. White used this testimony as one basis for his contention that evidence was incomplete without the lost video.
White used the testimony of Const. Drew Hildred of the Nelson Police Department to underscore this conclusion. Hildred was the officer who took Comeau’s statement immediately following the incident.
Hildred testified that he took no notes about receiving the video or about his discussion with Comeau about the video. He had no memory of how many videos he received, or when he received them, or in what format. He didn’t know how long the footage lasts on the hotel computer before being overwritten.
He testified that on Nov. 24 he found out about Comeau’s hospitalization, but did nothing at that point to ensure that video footage was obtained and saved.
White argued it was negligence on the part of Comeau and Hildred that led to the loss of the video that could have been crucial to Undershute’s case.
“There was absolutely nothing done (by Hildred),” White argued, “even though there was this knowledge that there was a medical emergency that could get in the way of Ms. Comeau providing that video. No steps taken, no recollection of how the video came to them except some guesses and speculation.”
White said greater care should have been taken given the uniqueness of this situation in which the complainant is also the manager of the video surveillance system.
Schecter responded that the loss of video evidence did not happen because of “unacceptable negligence.”
He said the term “unacceptable negligence” is a key concept in case law related to missing evidence, and that it refers to loss of evidence resulting from dishonesty or hiding something rather than simple inadvertence as he argued was the case here.
He said if there was negligence in this case it was not unacceptable within the unique circumstances that included a medical emergency.
Schecter said the assertion that the missing video would have helped the defence’s case is speculation, and it is unknown whether it would have helped or hindered it.
White responded that the court was shown, in a still photo, the view that the second camera would have captured, and there is a good chance that that video would have shown a person standing at the door and the direction of any spitting.
Schecter said it would not have been the only evidence about the incident, and that there is already one video and several witnesses.