By Keith Lacey, Local Journalism Initiative Reporter
The evidence Steven Gallagher was the man who pulled out a handgun and fired a bullet that struck and wounded a young man during Canada Day celebrations on July 1, 2022 on White Sand Beach on Osoyoos Lake was “overwhelming”, said a veteran judge last week.
Following almost two hours of reviewing the evidence in a two-week trial, Justice Shelley C. Fitzpatrick found Gallagher guilty of aggravated assault, one count of pointing a firearm and one count of discharging a firearm.
Following the guilty verdict, Gallagher stood up in the prisoner’s box and interrupted his defence lawyer David Hopkins, who was in the process of asking Justice Fitzpatrick that a Gladue Report be prepared before his client was sentenced.
A Gladue report is a pre-sentencing or bail hearing report, usually prepared by caseworkers at the request of the judge, defence counsel or Crown.
These reports contain recommendations to the court about what an appropriate sentence might be and include information about the Aboriginal persons’ background such as history regarding residential schools, child welfare removal, physical or sexual abuse, underlying developmental or health issues or substance use.
Indigenous people can waive their Gladue rights, which Gallagher did.
In March 2012, the Supreme Court of Canada ruled that Gladue Principle also applies to breaches of long-term supervision orders. The ruling stated that “failing to take [Aboriginal] circumstances into account would violate the fundamental principle of sentencing.”
“No Gladue Report,” said Gallagher, who then asked the court to impose his sentence as soon as possible.
When Fitzpatrick inquired again if Gallagher might want to talk to his lawyer before proceeding, Gallagher told the court “Mr. Hopkins works for me and I gave him clear instructions” that he didn’t want any reports prepared and wanted the sentencing hearing to take place as quickly as possible.
The court was emptied for a few minutes and Hopkins told the court once it resumed that Gallagher confirmed “he doesn’t want any reports” prepared before sentencing.
Fitzpatrick reviewed the evidence of the key witnesses who testified at the two-week trial, before rendering her verdict.
White Sand Beach circled in white. Google Maps image
All witnesses agreed there was a dispute between Gallagher and a group of his friends and a second group that included Gallagher’s ex-wife, her friend and several others in the ex-wife’s group.
Gallagher’s ex-wife testified she was surprised to see Gallagher and his friends at the same beach, but she said hello to him and his friends, and thought both groups could enjoy Canada Day celebrations and there wouldn’t be any problems.
After driving with her friend to pick up more people at a nearby campground, the trial heard they received a phone call that a fight had broken out between Gallagher and his friends and the ex-wife’s group of friends on the upper level of White Sand Beach.
The fight escalated and gunshots were heard soon after they returned to the beach. A young man had been hit in the hip by a bullet and was covered in blood, the trial heard.
The sole issue in this case was if the Crown had proved beyond a reasonable doubt that Gallagher was the person responsible for possessing and shooting the firearm, said Fitzpatrick.
The key eyewitness in this case is a woman who dated Gallagher’s brother several years ago and grew up knowing the accused and his family, said Fitzpatrick.
Fitzpatrick synopsized her evidence where she testified she tried to break up the fight, grabbed Gallagher by the shoulder, turned him around and pleaded with him to stop the fight, only to see him reach into his pants or shorts and pull out a handgun and then fired several shots into the sand, she said.
She was screaming and yelling asking Gallagher to stop the fight, but he didn’t listen, said Fitzpatrick. She didn’t see anyone else on the beach who had a handgun or fired one, said Fitzpatrick.
The woman testified she called 911 after witnessing a young man in her group had been hit by a bullet and was bleeding on the beach. The woman was angry and upset and her only motive in calling the ambulance was to get medical assistance for the injured man, she said.
She found her testimony to be credible, reliable and consistent both in direct evidence and cross-examination, said Fitzpatrick. “I accept without hesitation” that this witness told the truth to the best of her ability and that she clearly saw Gallagher take out the gun and fire it, she said.
Hopkins’ assertion that someone else was responsible for firing the gun was “fanciful” and she did not accept it, said Fitzpatrick. She also didn’t agree with Hopkins’ suggestion that the woman’s testimony was “self-serving” and biased against the accused, said the judge.
The woman called 911 out of concern for the injured man, never mentioned what she saw amidst the chaos on the beach during that call and ended up hanging up on the 911 operator, which contradicts defence counsel’s assertions against her, said Fitzpatrick.
She reiterated her evidence was credible and reliable and “on her evidence alone”, she was convinced beyond a reasonable doubt Gallagher pulled out the gun and was the shooter, said Fitzpatrick.
Gallagher’s ex-wife gave similar testimony about the events of that day before and after the shooting, but she did not see who pulled out and fired the gun, said the judge.
The shooting victim and two other witnesses who had never met Gallagher before that day all testified the fight started when a man “kicked sand” towards them on the beach, she said.
It was pointed out to them by the ex-wife who Gallagher was as she commented he was her former husband, said Fitzpatrick.
All three witnesses asked Gallagher to stop kicking sand at them, but he didn’t, things heated up and a fight started, said Fitzpatrick. All three testified the man kicking sand was the same man they saw holding the handgun and firing it, said Fitzpatrick.
They also gave similar testimony that the shooter fired several bullets into the air and into the sand, said Fitzpatrick. “The man kicking sand and the man who fired the gun are the same person,” said Fitzpatrick.
The shooting victim was “100 per cent positive” the man he observed holding the gun and firing it was the same man who kicked sand at him and his friends earlier, she said. That man was the same man in the prisoner’s box in the courtroom during the trial, she said.
She called the evidence of all three witnesses credible, reliable and consistent. Fitzpatrick ruled the “sand kicker was the shooter” and that man was Gallagher.
Assertions by Hopkins that a man in an orange shirt might have been responsible for the shooting simply don’t hold up, said Fitzpatrick. Much of the defence evidence and cross-examination of witnesses was confusing and not reliable, she said.
On the whole of the evidence, the Crown has proven its case beyond any doubt that Gallagher was the shooter, said Fitzpatrick.
The next court appearance in this case will take place Jan. 13, when a date for sentencing will take place.
This article first appeared in the Penticton Herald.
