A Campbell River woman sentenced to 18 months of probation for coughing in the face of a grocery store supervisor in the early days of the pandemic has had her convictions thrown out.
A provincial court judge had found Kimberly Woolman guilty of assault after she coughed in the face of a Save-on-Foods supervisor and rammed her shopping cart into a store manager during an incident in the store on April 24, 2020.
She was also convicted of causing a disturbance by yelling and swearing that “COVID wasn’t f---ing real” during the incident.
Woolman was complaining with “considerable persistence and vigour” about the store’s pandemic safety policies, according to a B.C. Supreme Court decision released Thursday. At the time, public health officials were urging people to keep at least two metres of distance from other people.
Woolman appealed her convictions, arguing the trial judge erred in not allowing her to call a character witness. The judge ruled that while character evidence can be helpful in sentencing, it is not admissible in a trial.
B.C. Supreme Court Justice Douglas Thompson decided to dismiss Woolman’s convictions, calling the trial judge’s decision not to allow a character witness an “erroneous ruling” that was “not harmless or minor.”
The Crown argued on appeal that a character witness was not relevant because Woolman’s identity was not in question. The trial relied on testimony from several witnesses as well as video of the incident.
“The question of whether she is of good character does not displace the video depicting the crime, nor does it displace the numerous eyewitnesses who testified and were found to be credible and reliable,” a lawyer for the Crown argued.
Thompson disagreed, saying character evidence can speak to issues other than identity. An issue at trial was whether Woolman was shouting and whether her coughing or ramming a shopping cart at store workers were intentional.
While the bulk of evidence supported the trial judge’s finding that Woolman shouted, one employee characterized the volume of her voice as “a slightly aggressive tone” that became elevated over time but did not amount to yelling.
Allowing Woolman to call a character witness would have changed the body of evidence presented at trial, Thompson said.
“It is a reasonable supposition that the excluded character evidence would have been to the effect that the appellant’s reputation is as a peaceable person, and the record may have included evidence from the appellant about how loud she was speaking,” Thompson wrote in his decision.
Rather than ordering a new trial, which Thompson said would normally happen in a case like this because there is a reasonable possibility of conviction on a retrial, he decided to acquit Woolman, because she had already served about a third of her 18-month sentence of probation.
