B.C. woman convicted of coughing on grocery worker during pandemic acquitted

A Save-On-Foods sign, Cambie Street, Vancouver, June 17, 2015. THE CANADIAN PRESS IMAGES/Bayne Stanley

A British Columbia Supreme Court judge has acquitted a woman who was sentenced last year to 18 months of probation for intentionally coughing in the face of a grocery worker and assaulting another worker with a grocery cart during the COVID-19 pandemic.

Justice Douglas Thompson on Thursday threw out the convictions for two counts of assault and one count of causing a disturbance, finding the lower court judge erred by not allowing the accused to call a character witness during her trial.

Kimberly Brenda Woolman was found guilty of the charges last April and was sentenced to 18 months of probation in July.

The altercation occurred three years prior, on April 24, 2020, when provincial health orders required stores to limit the number of customers allowed inside and required shoppers to stay at least two metres apart.

Grocery employees testify

Judge Barbara Flewelling presided over the three-day trial, which heard from five employees of the Campbell River store who testified that Woolman refused to follow the store's COVID-19 mitigation measures, refused to leave the store when asked, and shouted "loud invective that COVID-19 was fake," the trial judge wrote in her decision.

Employee Jacqueline Poulton told the court she was following Woolman down a store aisle and asking her to leave when Woolman stopped abruptly, turned to face her from about a metre away and then leaned in to forcibly cough twice in her face.

After staff convinced Woolman to vacate the store, employee Gordon Dawson instructed her to leave her shopping cart behind because it had unpaid items in it. Woolman refused, saying she needed the cart to walk to her car. Employees offered her an empty cart, which she declined, before shoving her cart into Dawson.

"Those were the very early days of the COVID 19 pandemic when scientists and medical professionals were struggling to understand how the virus was transmitted between people," Flewelling wrote.

"It was recognized that it was a respiratory virus. In those early days, there was no medication or vaccine available to cure or to reduce the severity of the infection," she added.

The judge noted that while most British Columbians at that time were able to remain at home, front-line workers who provided essential services did not have that luxury.

"Those front-line workers included the people who went to work every day at Save-On-Foods so that people could buy groceries," she wrote. "Those front-line workers were the people that Ms. Woolman derided and assaulted."

The trial judge also noted that Woolman was similarly aggressive and rude to witnesses and to the court during her trial.

'Error was not harmless or minor'

After sentencing, Woolman appealed her conviction on "myriad grounds… many of which are manifestly without merit," Thompson wrote in his decision to overturn the trial judge's ruling Thursday.

During her trial, Woolman discharged her lawyer and opted to represent herself. Shortly after, she advised the court that she wished to call a character witness, but the Crown prosecution objected, saying such evidence would be irrelevant to the case.

The trial judge sided with the Crown and ruled against hearing from the character witness, "holding that character evidence can be helpful in sentencing proceedings, but character evidence is not admissible on a trial proper whether led by the Crown or an accused," Thompson wrote.

"After this erroneous ruling, the court heard evidence from the last two Crown witnesses," Thompson wrote. "The accused elected not to call evidence. After hearing submissions and reserving judgment, the trial judge delivered her reasons for convicting the appellant on all three counts."

No new trial ordered

The B.C. Supreme Court judge found that the excluded evidence could have provided insight about whether Woolman is a "peaceable person" and whether she was indeed shouting at employees as some witnesses for the prosecution testified.

"The weight of the evidence heard by the judge supported her finding that the appellant shouted," Thompson wrote. "However, the impressions of the Crown witnesses on this issue were not uniform."

"I am not satisfied that the character evidence ruling was harmless in that it related to a minor aspect of the case that could not have had any effect on the outcome," Thompson concluded.

Typically, a successful appeal would merit a new trial in such a case because it is reasonable to believe the accused would be convicted again, even with the character evidence allowed, the judge found.

However, given that Woolman has already served approximately one-third of her 18-month sentence, Thompson ordered a full acquittal of the charges.