A ruling in a case involving a man accused of assaulting a property owner with his ATV likely won’t come until mid-August.
B.C. provincial court Judge Michelle Stanford said Wednesday she needs at least 60 days to deliver a verdict in the trial of Alan Gear, 42, who is charged with assault with a weapon, dangerous operation of a conveyance and mischief in connection with the May 1, 2020 incident.
“I’m going to need time to read these authorities and review the evidence,” Stanford said, following final summations Wednesday. “I’ll get to it as soon as I can so you’re not hanging in the wind there, Mr. Gear.”
Crown Counsel Julie Dufour told the court how Roy (Tom) Nichol caught Gear trying to cut the wires of a barbed-wire fence on his son’s property on Foothills Road in Lone Butte. Nichol, 57, testified that he confronted Gear, who became belligerent and spat in his face. Nichol testified he then punched Gear and knocked him down the hill, before kicking him, aiming for his groin.
Nichol said he was heading down the road toward Lone Butte, when Gear ran into him with his ATV, hitting him in the back and injuring his right hand.
Gear later testified that he was acting in self-defence when he “hit the throttle” and chased Nichol toward the fence, hitting him twice.
“Mr. Gear admitted he hit him twice as he was running away from him. That’s not self-defence – that’s revenge and that’s very serious,” Dufour said. “The act of driving an ATV toward a human being is a dangerous act and is also an assault.”
However, defence counsel George Wool argued there were several inconsistencies in Nichol’s testimony, noting the facts corroborate Gear’s account of the situation.
Gear had testified earlier that he was snipping the fence because he thought it was put up by CN Rail and he wanted to get access to the trail. He said after Nichol kicked him in the groin, he tried to leave but then Nichol ran after him and tried to punch him in the face before stealing his chainsaw.
Wool argued that Gear suffered an injury to his hand while trying to get the chainsaw back, while Nichol only had torn pants from trying to get over the fence.
“If he went to his ATV and turned around, what possessed Mr. Nichol to cross the fence and chase after him? That’s not the conduct of a victim. That’s the conduct of an aggressor,” Wool said.
Wool argued there is no evidence to support Nichol’s testimony. “Mr. Nichol decided he should call the police to put across his version, which I’ve now pointed to you has several inconsistencies because they are based on lies. They are not based on truth,” he said.
He urged the judge to consider the assault was consensual and that Gear believed he had a right to snip the fence to access the trail because he had been using it for years.
However, Dufour countered it wasn’t consensual as this was “not a bar brawl where two drunken men start fighting over a girl,” she said. She noted Nichol, a much smaller man than Gear, was not looking for a fight when he went to check on his son’s property and found Gear snipping the fence.
“He is not an aggressor but just a reactor to someone cutting his fence.”
She added the law treats homes as a “very sacred thing in law” and fences are put up to protect against trespass and theft. She also disputed Wool’s assertion that Gear thought he had a right to cut the fence because he believed CN had put it up.
“You’re not allowed to cut the property of a CN fence line or cut the fence of a private owner,” she said. “He knew it wasn’t his fence. He didn’t have a partial right.”
She maintains Gear’s testimony is inconsistent because he said Nichol was calling the police while running after the ATV and trying to punch him in the face – all at the same time. “None of that makes any sense physically.”
Meanwhile, Wool also urged the judge to consider the police behaviour in the case, arguing that police arrested Gear at the hospital “without an impartial investigation.” He said the arresting constable shrugged his shoulders when Gear tried to tell his side of the story, which led Gear to attempt suicide.
“From his perspective, this is a biased investigation and unfair.”