North River man denied appeal of jail sentence for assault causing bodily harm

Harry Sullivan
Published on August 8, 2014

TRURO – An attempt by a North River man for an interim release and leave to appeal his jail sentence has been denied by the Nova Scotia Court of Appeal.

David William Johnston, 40, of 220 Mountain Lee Rd., was recently sentenced to nine months in jail after being convicted of assault causing bodily harm by running into another man with his car and attempting to administer a noxious substance.

As noted during an agreed statement of facts at the July 18 sentencing, Johnston pled guilty to the charge, which resulted in other charges of dangerous driving, assault with a vehicle and leaving the scene of an accident being withdrawn by the Crown.

Appeal court Justice Peter Bryson said in his written decision that Johnston’s request for an appeal, which was based on the premise that his sentence was too long, did not have merit.

Bryson also ruled against Johnston’s expression of concern that the “normal delays of appeal may render his appeal moot, in that he could serve his entire sentence before his appeal is heard.

“Mr. Johnston advances no such detailed arguments in this case,” Bryson said in his decision. “He simply repeats the assertions in his notice of appeal that nine months is excessive and that the trial judge improperly emphasized denunciation and deterrence. Nothing in the record suggests she did so. To the contrary, the sentencing judge (Michelle Christianson) quoted extensively from the relevant sections of the Criminal Code, together with leading jurisprudence, and then married those principles to the facts before her,” he said.

“Mr. Johnston cited no case to this Court that suggested nine months for assault causing bodily harm and attempting to administer a noxious substance was manifestly wrong or excessive. Nor did he point to any passage in the sentencing judge’s decision that would suggest inappropriate considerations leading to the sentence.”

The incident for which Johnston was convicted occurred in April 2013 when he ran into his victim, Jason Nichols, in the parking lot of the Robie Street Sobeys.

At the time, Nichols was in a relationship with (and now is married to) Johnston’s ex girlfriend. On the day in question, he left a number of items on the top of Nichols’s car, including a can of Pepsi that was laced with old prescription pills that Johnston had at his home.

Johnston waited in the parking lot until Nichols approached his own car and then ran into him and drove off. The impact “hurled” Nichols into the air, resulting in a head laceration and soft tissue injuries.

As Bryson indicated, however, “it could have been much worse.”

As Judge Christianson noted during her sentencing: “The crime that you committed is a violent crime. You located him, you identified him, you followed him into the parking lot, you then struck him from behind in a vehicle that accelerated towards Mr. Nichols.

“It is extremely fortunate that his injuries were not more severe,” she said. “Your actions were deliberate, as acknowledged in your agreed statement of facts …”

And while Christianson also acknowledged that Johnston, a magician who performs under the stage name Mister J, had already undergone a “public shaming,” she said his actions “were severe and there must be serious consequences for them.”