Roy Winter sometime after the assault.

Image Credit: SUBMITTED:Roy Winter

Stopped at a traffic light first thing in the morning on his way to work, Kelowna resident Roy Winter heard a thud as an unknown man threw a bicycle against his vehicle.

Confused as to what was going on, Winter got out of his vehicle and was promptly sucker-punched and kicked in the face.

He ended up at Kelowna General Hospital and had six stitches put in his face. Medical records describe it as a "complex nose fracture."

Now almost a year later, Winter is taking the unusual step of trying to sue the BC Prosecution Service in order to get justice.

Winters filed in the BC Supreme Court last month petitioning the court to order the Crown to proceed with charging the suspect with aggravated assault and assault causing bodily harm.

According to court documents, the suspect was never arrested at the scene and was only given conditions to stay away from Winter.

"Why do I have to go around being sucker punched and kicked in the face as a senior citizen by stupid people," he said.

In March, the 60-year-old found out that the Crown wouldn't be proceeding with any charges.

"I was furious," Winter told iNFOnews.ca. "And I'm still furious... it makes me sick to my stomach."

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Winter says he didn't know the person who assaulted him but does have dashcam footage of the individual, although not the assault itself. He also says a security guard was parked behind him at the light and saw the incident. He's sure the security guard vehicle would have had dashcam footage.

"When the police didn't arrest him at the time I thought something was kind of strange, but I was more worried about what happened to me," he said.

Winter followed up with the RCMP six months after the incident in January and was told that police had forwarded the file to Crown prosecutors just days earlier. There's nothing in the court documents to explain why it took the RCMP so long to forward the report.

Court documents say Winters followed up with them in March and were told Crown wouldn't be pursuing charges as the incident had been deemed to be a consensual fight.

"This couldn't be further from the truth," Winter says in his petition to the court.

"I can prove beyond a reasonable doubt that this was an unprovoked aggravated assault and assault causing bodily harm," the court documents say. "I can also prove that I also didn't even lay a hand on the suspect."

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Winter says, to date, the RCMP has never taken a statement from him or tried to obtain the dashcam footage he has.

"Their investigation was done without anything from me," he says.

In its defence, the Prosecution Service filed in court stating it exercised its "constitutionally entrenched prosecutorial discretion" and did not approve charges be brought against the unidentified individual.

Crown prosecutors don't have to explain why charges aren't approved or are later stayed.

The Crown filed an appeal to the court to have the case thrown out, which it will almost certainly do.

Winter is up in front of a judge next month to argue his case.

"I'm going to tell the judge... that because of this person I now carry protection in my vehicle."

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While his chance of winning is basically non-existent, Winter says he's determined to fight for justice.

"It just makes me sick to my stomach that the law and the people that are supposed to put people in jail don't give a crap about it," he said. "And you wonder why people take the law into their own hands."

The prosecution service said as the matter was before the courts it wouldn't be commenting.

None of the allegations have been proven in court.

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