Editor’s note: This story contains homophobic and transphobic language quoted by the judge in her ruling. We have included it because the language used influenced the decision.
A man on trial for punching a Squamish trans woman has been convicted of aggravated assault, putting an end to questions of whether he was defending himself in a consensual fight.
On June 25, Judge Patricia Bond convicted Cody Jamie Eric Nelson of aggravated assault in the beating of Jayme Schmetterling.
Nelson was convicted in North Vancouver Provincial Court.
During the trial, which began last year, the court heard that on Oct. 15, 2018, Nelson punched Schmetterling after the pair confronted each other outside the downtown Dollar Tree, where Schmetterling held a steady job.
The court was told that as a result of either a verbal or non-verbal exchange, Schmetterling became angered by Nelson’s conduct and pulled down his pants.
Nelson responded by punching Schmetterling, causing her to reel backward and eventually fall to the ground.
She suffered injuries to her face, including broken orbital bones, and bleeding in her brain, which led to lasting brain damage.
When giving the reasons for her decision on June 25, Bond made several key findings.
Bond found that Schmetterling could have reasonably expected a response from Nelson after pulling down his pants.
However, any consent Schmetterling had given was nullified, as Nelson intended to cause Schmetterling serious bodily harm.
Bond found Nelson caused the injuries to Schmetterling, and her wounds were the result of the punches, not the result of her falling down.
When dealing with questions of whether Nelson was acting in self-defense, Bond said she did not find that Nelson acted reasonably in the circumstances, especially given the fact that Nelson is a fit young man and that Schmetterling is a frail person in her 60s.
Regarding the issue of consent, Bond said there was no question Schmetterling voluntarily entered into a physical altercation.
“There is no question that she could reasonably have expected a reaction of some sort to her actions,” said Bond.
“However, the Crown argues that if the court finds that Mr. Nelson intended to inflict serious bodily harm on Ms. Schmetterling, it does not matter if the complainant voluntarily entered into the dispute.”
Bond recalled Nelson’s remarks shortly after the incident and determined that he in fact did have the intent to cause serious bodily harm.
She quoted text messages Nelson sent that read, “‘Right after I left your place I knocked out a fag [downtown] read the paper.’”
The judge said another text from Nelson read, “‘I knocked the fag out legally because it smacked my ass, not just because it was gay.’”
Bond also noted the court heard that a man matching Nelson’s description was overheard at Sky High Cannabis dispensary saying, “‘I just beat the shit out of the tranny from the Dollar Tree.’”
Bond said she had no difficulty in concluding that Nelson intended to cause Schmetterling serious bodily harm.
“There is no mistaking the disrespect and even disgust expressed by the speaker with respect to Ms. Schmetterling as a transgender person. He refers to her as a ‘tranny,’ a ‘fag,’ and even ‘it.’ This depersonalization is consistent with the disparaging comments or attitude alleged by Ms. Schmetterling and suggests that Mr. Nelson held Ms. Schmetterling in contempt.”
Bond cited a previous, separate case, where a judge said, when instructing a jury, that even where a person does consent to “the application of force,” this only covers a “certain amount of force.”
“Even where it is reasonable to assume that Ms. Schmetterling expected some reaction from Mr. Nelson to her actions, the question remains whether her consent was vitiated [in other words, nullified] by Mr. Nelson’s response,” Bond said.
The next question was whether Nelson was the cause of the injuries, or whether Schmetterling incurred the injuries because she fell.
Bond found that Nelson was responsible.
“I find that the cause of Ms. Schmetterling’s injuries were the punches delivered by Mr. Nelson to Ms. Schmetterling’s face rather than by her face impacting with the wall or the pavement.”
Bond also dealt with another key point — whether Nelson had acted in self-defence.
In her decision, the judge said that Nelson’s response was not proportional or reasonable given the circumstances.
Bond said that in this incident, a young healthy man was facing a frail older person in her 60s, which meant Nelson had the upper hand from the start.
Nelson could have instead either called for help, restrained Schmetterling, called the police, or left the area, Bond said.
“I find that Mr. Nelson’s response was out of proportion to Ms. Schmetterling yanking his pants down some six inches or so. In the result, I find that Mr. Nelson’s actions were unmeasured, disproportionate and unreasonable in the circumstances,” said Bond.
“I find that he had the intent to cause serious bodily harm, and caused Ms. Schmetterling to suffer broken orbital bones and bleeding in her brain, which has resulted in lasting damage.”
Nelson’s sentencing hearing is scheduled for Oct. 8 at Robson Square Provincial Court.