R. v. Dean, 2024 ONCJ 73

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 01 31 COURT FILE No.: Toronto 4817 998 700003547

BETWEEN:

HIS MAJESTY THE KING

— AND —

HOLLY DENISE DEAN

Before: Justice David S. Rose

Heard on: August 29, 31, September 1, 2023, January 11, 2024 Reasons for Judgment released on: January 31, 2024

Counsel: Mr. Foreman, counsel for the Crown The defendant Holly Dean, on her own behalf

Reasons for Judgment

Rose J.:

1Ms. Dean pleaded not guilty to several charges, all said to have occurred on May 9, 2022:

1. Assault on Maureen McDonald;
2. Assault on Talhia Delcogliano;
3. Assault with a Weapon on Maureen McDonald;
4. Assault with a Weapon on Talhia Delcogliano;
5. Assault with a Weapon on Kevin McDonald;
6. Possession of a Weapon for a dangerous purpose;

2The weapon alleged in counts 3 – 6 is pepper spray.

3Based on the evidence it is beyond dispute that some things occurred on May 9, 2022 in the backyard of 1025 Queen Street West. Ms. Dean was the tenant in an apartment at that address. Ms. McDonald is the owner of the building and Kevin McDonald is her nephew. Tahlia Delcogliano is Kevin McDonald’s partner. 1025 Queen Street has a backyard through which a basement storage unit can be accessed as well as Ms. Dean’s apartment.

4There is no question that Ms. Dean and Ms. McDonald had an acrimonious relationship on May 9, 2022 as a result of landlord and tenant issues. There is no question that on May 8, 2022 at 5:00pm Ms. McDonald sent Ms. Dean an email saying:

Holly and Mike:

This email is to inform you that I will be accessing my storage area in the basement of 1025 Queen Street East between 5:00 – 8:00 pm on Monday May 9 and will be park my vehicle while I’m accessing my storage area.

Thank you,

Maureen McDonald Owner and landlord 1025 Queen Street East

5There is no dispute that Ms. Dean emailed Ms. McDonald at 11:04 am the next day saying:

Hi Maureen,

This is insufficient notice.

We will not be able to accommodate your request today.

You do not have permission to park in our yard on any day.

Regards,

Holly and Mike

6At 11:50 am Ms. McDonald emailed Ms. Dean back saying:

Holly and Mike:

As per my email below, I have given more than 24 hours notice that I will be attending the property today and will be doing so per section 37 of the LTB Act. I will be accessing my store unit in the basement. I do not require to enter into the rental unit to access my storage unit space.

Thank you,

Maureen McDonald

7Maureen McDonald testified that on May 9, 2022 she arrived at the rear of 1025 Queen Street around 6:30pm to move some things into her basement storage unit. She parked her car outside the rear gate in the alley. There is a separate entrance to that unit off the rear of the building, but the evidence showed that it could also be accessed through the front of the building too. Ms. McDonald’s nephew Kevin McDonald was also permitted to store things in that unit and had been doing so for some time. He knew Ms. Dean for that reason.

8In order to access the storage unit from the rear of 1025 Queen Street a trap door under the rear deck opens up, revealing stairs leading into the basement.

9Kevin and his girlfriend Tahlia Delcogliano arrived within minutes, and Ms. Dean by bicycle about 8 – 10 minutes later. Before Ms. Dean arrived Kevin had entered the rear yard to open the storage unit. The backyard is mostly paved with concrete with a small patch of grass off to the side. Two railway ties were lying across the paved area where a car might otherwise be able to pass through the gate into the yard. There was a delay getting into the storage unit because a propane tank was chained to the access door.

10When Ms. Dean arrived Ms. McDonald, Ms. Delcogliano and Mr. McDonald were unloading things from the rear of the car parked outside the gate. In their evidence they all adopted the video recording of the event. Very roughly the sequence is that Mr. McDonald was in the back area attempting to get into the basement storage unit. His video shows the stairs going down to an open door. The video shows Ms. McDonald and Ms. Delcogliano at the rear gate as Ms. Dean arrives. At that point Ms. Dean is clear that she will not permit anyone into the yard. Ms. Dean’s voice becomes increasingly agitated and she very quickly has a small plastic bottle in her right hand and her phone in her left.

11The argument at the gate becomes louder and louder. Ms. Dean tells Mr. McDonald to leave immediately, despite his efforts to de-escalate. Ms. Dean takes Ms. McDonald’s cell phone and retreats into the yard. Ms. McDonald follows her in. Ms. Dean attempts to engage neighbours on the other side of the fence at which point Ms. McDonald takes her phone back from Ms. Dean and walks toward the gate. She stops to pick up her sunglasses which had fallen by the railway ties. Ms. Dean pushes her from behind, and as she is leaving sprays pepper spray at her as she is leaving. Mr. McDonald then leaves and is also pepper sprayed as he is leaving. Ms. Delcogliano remains at the gate and is hit with the pepper spray.

12Ms. McDonald testified that the pepper spray hit her in the back of her head, hair and left eye. It didn’t wash out and left a strong burning sensation, and had to be steam washed out. She had cancer surgery scheduled for May 11 and the pepper spray added an element of stress.

13Ms. McDonald testified that her rental agreement with Ms. Dean included the parking area, but that she, the landlord, managed the property. She testified that the tenant, Ms. Dean, is responsible for mowing the lawn and shoveling snow. She was cross-examined about why she was accessing the yard on May 9 and said that that is how she always accesses the basement. While she had access to the basement through the other unit in the building, the commercial unit, she never accesses the basement that way. She was questioned about why Kevin was there and said that he wanted to put winter tires into the storage unit. She denied Kevin and Tahlia were there simply to create video content. She explained that she gave a window of 3 hours for her arrival.

14Ms. Delcogliano also adopted the content of the video. She was there that day to help her partner Kevin move some boxes. He stores seasonal things in the basement. By the time Ms. Dean showed up they were almost finished the moving. Ms. McDonald was not moving things which were heavy. Ms. Delcogliano said that she remained outside the gate, and only blocked it while Ms. McDonald and Mr. McDonald were in the yard. She did not want Mr. McDonald locked in. She testified that she was hit with the pepper spray on her skin. Showering did not take it.

15Mr. McDonald also adopted the contents of the video. He had been storing seasonal things in the storage unit like an air conditioner, golf clubs and tires. He testified that Ms. Dean had been recently asking him to let her know if he was coming into the storage unit which he did once or twice. His interactions with Ms. Dean up to then were cordial. Access to the basement of 1025 Queen Street had never been a problem until that day. The pepper spray left him with skin irritation all evening until the next morning. He was asked about why he said he would stay there all evening or that he was prepared to be maced, and replied that he was willing to wait until Ms. McDonald’s phone was returned to her. He explained that he called Ms. Dean “baby” in a flippant way. He described it as a high intensity situation which he did not want to be part of. He denied that he was trespassing on May 9.

16The events were captured on video. It appears that all 4 people videotaped the incident, and these were entered into evidence. This was extremely helpful in deciding the case. The video starts at 6:40 and last some seven minutes. The allegations take place over those seven minutes.

17At 1640 Ms. Dean is heard telling Ms. McDonald that she should not come into the backyard, and that she (Ms. Dean) could call the police. At that point Ms. Dean has her own phone in one hand a small plastic spray bottle in the other. Ms. Dean is heard saying that if she comes in my yard this will definitely hurt. Ms. Delcogliano says, in a very calm voice, that “all she wants to do is put some boxes in a hole”. Ms. Dean replies “she has to do it the right way”.

18Ms. Delcogliano says to Ms. Dean that they are simply there for access to the storage unit, and Ms. Dean replies that that requires access to her front door. Ms. Delcogliano clarifies that no such access is needed. This has nothing to do with her unit. At this point Ms. Delcogliano uses a calm voice. Ms. Dean is by then clearly agitated. Ms. Dean is clear that the notice provided was inadequate because it was provided on Mothers Day and appropriate notice is required during business hours between 8 am and 8pm on weekdays. Ms. Dean tells Ms. Delcogliano that Ms. McDonald wrongfully evicted her and “…she wants me to do a favour today?”.

19At this point Ms. Delcogliano continues to use a calm voice but Ms. Dean is amped up. She has the bottle of pepper spray and moves her thumb to the trigger. At 18:42 Ms. Dean tells Ms. McDonald and Ms. Delcogliano “out you go” and begins to shut the gate. At that point Mr. McDonald is heard from inside the yard saying “Hey I need to get out too by the way”. He had been on the back deck but apparently unnoticed by Ms. Dean up to then. Ms. Dean calls Kevin by his name. Ms. Dean tells him “you need to get out Kevin”. At that point Ms. Dean is holding the pepper spray in her right hand with her thumb on the trigger. Kevin says that he is leaving and points out to her that she is carrying a weapon. He tells Ms. Dean to put the weapon down and he will leave. At that point Ms. McDonald and Ms. Delcogliano are outside the yard on the other side of the gate filming with their phones. He is heard to say “I do not want to get sprayed by mace”. Ms. Dean puts the spray cannister into her backpack.

20Mr. McDonald walks back to the deck to close up the access. He says if you spray anyone with that I will tackle you. Mr. McDonald is heard to say “are you surprised” at which point Ms. Dean’s voice takes on a pitch which is very high, at 6:44 she moves her bicycle into the back yard. Mr. McDonald is heard to say, “can we just move the boxes and get this over with?’. At 6:45 he is seen on video closing the access to the basement storage unit, and Ms. Dean then takes Ms. McDonald’s phone. Ms. McDonald is still at the gate at that point in the sequence. Ms. Dean steps back a step into the yard. Various demands to give back the phone are made and Mr. McDonald then says he “will stay all night baby”. Ms. McDonald then steps into the back yard and Ms. Dean is seen with Ms. McDonald’s phone in her left hand. At 6:46 Ms. Dean swipes at Ms. Delcogliano’s phone with her right hand. She does not succeed in taking that phone too.

21Mr. McDonald continues to reason with Ms. Dean, asking “can I talk to you as a rational person?”. By then Mr. McDonald is sitting on a railway tie at the permitter of the yard and Ms. McDonald is standing next to him while Ms. Dean has her phone in her right hand. Within seconds Ms. Dean moves to the fence to try and engage her neighbour and Ms. McDonald grabs her own phone back. Ms. Dean is seen resisting that. Ms. McDonald then moves toward the gate but her glasses fall off in the process. She bends down to pick them up and as she does that she is pushed by Ms. Dean from behind. At 6:46 Ms. Dean is seen spraying Ms. McDonald as she is leaving the yard. She then turns to Mr. McDonald. Seconds later she sprays Mr. McDonald as he is leaving the yard. The video at 6:47:05 captures the yellow stream leaving the spray bottle toward him.

22Seconds after that Ms. Dean is seen closing the gate from inside. All three complainants are on the outside.

23The Crown also called a TPS Officer, PC Tannous, who seized a cannister from Ms. Dean’s apartment on May 22, 2022 under the authority of a search warrant. An expert witness, Dr. Dorn, from the Center of Forensic Sciences, was qualified to testify and gave evidence that the spray bottle had traces of Capsaicin and Dihydrocapasacin, namely pepper spray. He could not say the concentration or amount, only that traces of those chemicals were found on the plastic bottle.

24Ms. Dean testified as the only defence witness. She is a real estate agent and had an offer in on a property for a client that day. When the altercation occurred she was on her way home to continue working on the deal. Ms. Dean testified that access to the storage unit was not part of her lease agreement with Ms. McDonald. She also adopted the video, and had her own angles to present in evidence. She testified to feeling powerless and unable to close the gate because Tahlia was blocking it with her foot. She was confused and worried. In her evidence she could not park her bike and she could not enter her apartment. She testified that Ms. McDonald was the aggressor. She presented the video when Ms. McDonald grabbed her cell phone back and said that Ms. McDonald punched her across the face. She admitted to spraying Ms. McDonald as she was leaving the yard, but explained that she was careful not to hit her face and that there were no injuries because of this. The complainants were exaggerating their injuries from the pepper spray.

25Ms. Dean testified that she had exclusive use of the backyard and Ms. McDonald ought to have known this. She did not arm herself in anticipation of using the pepper spray on Ms. McDonald and she had no way of knowing that Ms. McDonald would bring two others. She was adamant that her response was not unreasonable. Ms. McDonald did not satisfy Landlord Tenant requirements. The incident on May 9 was a continuation of a landlord tenant dispute which had been going on for some years. Ms. Dean testified that Ms. McDonald was being vexatious as a landlord, and that she is the victim.

26In cross-examination Ms. Dean testified that she got the email from Ms. McDonald the next day, May 9. She had previously let Mr. McDonald and was accommodating to Ms. McDonald, just not for 3 hours as per the email. She knew that they were all there to move boxes into the storage unit. They were not there to steal from her, or damage her property, she just didn’t want them in her yard. She needed to work which is why she needed them to leave the yard. She didn’t leave herself because she could not park her bike and had no reason to retreat to. In Ms. Dean’s evidence Ms. McDonald showed a willingness to harm her.

Credibility Issues

27Ms. Dean argues that I should find that Ms. McDonald lied in her testimony. To the contrary, I found her evidence credible. No internal contradictions were apparent, and her viva voce evidence was confirmed by the video tape of the incident. At no time did she exaggerate her conduct in the incident. I also find that Ms. Delcogliano and Mr. McDonald both gave evidence which was confirmed by the video evidence of the conduct. No internal contradictions were identified. There is no basis on which I could reduce the weight of their testimony for reasons of credibility, and I find them to be credible witnesses.

28Ms. Dean also adopted the contents of the video but with some additions. She testified that Ms. McDonald assaulted her in the face in the moments when Ms. McDonald was retrieving her phone from Ms. Dean. She also testified that she was justified in using force when she pushed Ms. McDonald and when she used pepper spray in the backyard toward Mr. McDonald and Ms. McDonald.

29Ms. Dean explained why she used pepper spray that day:

And I also wanted to point out that my actions that day, if -- if my intention, Your Honour, were to assault my landlord, I could have just had in- or -- or to -- to block my landlord completely that day, I could have just padlocked my gates. I could have blocked her from the entire yard. But I didn’t do that. I also could have been there right at five p.m. waiting for her to appear, which I didn’t do. I came at 6:30 when I needed to be at home. And so by her being there at 6:30 in the middle of this five to eight window shows that it wasn’t -- to me, it showed that it -- it -- if it -- it were -- it wasn’t a priority. If someone needs three hours to put a suitcase and a couple of boxes of pots and pans into their storage unit, that’s a problem. To me, that was -- it shows -- to me, that shows that I wasn’t -- that wasn’t -- she wasn’t my priority that day, that my priority was to finish my professional obligations. I simply wanted them to leave from start to finish. Everything I said, everything I did or didn’t do was to get them to leave to the very end.

30Ms. Dean’s testimony had frailties. I would list them as:

1. In her evidence she said that she would have permitted Kevin access to the storage unit if he had texted her. She was also seen on video saying clearly that Ms. McDonald’s notice of entry was ineffective because it was made on mothers day, which is not during regular business hours between 8 am and 8pm.

I take this to be an admission that Ms. Dean’s dispute with Ms. McDonald, and Mr. McDonald that day was the form of the notice and not their entitlement to access the storage unit. At times Ms. Dean said that her problem with access to the storage unit that evening was that it interfered with her ability to go home and work on the real estate deal which she had just sent in for consideration. There is nothing in the evidence, including her testimony which would provide a basis to find that the presence of the three complainants in the backyard as they accessed the storage area in the basement would or could interfere with her ability to enter her apartment and continue to work.

Ms. Dean’s testimony therefore insists that there was a problem with the presence of the three complainants but her testimony is inconsistent with the rest of the evidence heard at the trial, which I accept. When questioned by Mr. Foreman Ms. Dean said that she did not let Ms. McDonald into the backyard because she did not have a legal reason to be there. She denied that it had had anything to do with a breakdown in her relationship with Ms. McDonald, but that denial flies in the face of her own evidence which went into considerable detail about just that. Her denial that her actions that evening were guided by a breakdown in the landlord tenant relationship was a facile attempt to deny the obvious.

2. Ms. Dean testified that she did not leave the backyard because she could not park her bicycle. That flies in the face of the video evidence which showed a backyard sufficiently large to accommodate parking her bicycle without interfering with the complainants’ access to the basement storage unit. Ms. Dean was simply inventing a reason in her evidence to continue the altercation, but her explanation about her bicycle was not the reason she needed to be in the backyard at that time.

3. Ms. Dean testified that Ms. McDonald had a willingness to harm her. That is completely unsupported on the evidence heard at this trial. The video shows Ms. McDonald to stay at the back gate of the yard until the point when Ms. Dean took her phone, after which Ms. McDonald then entered the backyard to retrieve her phone.

4. Ms. Dean testified she could not call the police as she said because she needed to work. On the video she is heard saying that she could call the police, but the video shows that she never did that. If Ms. Dean was genuinely feeling threatened by the presence of the complainants there is no reason she could not have used the phone which she was holding to call the police instead of using it to video tape the altercation.

5. Ms. Dean testified that she took Ms. McDonald’s phone to get Ms. McDonald to leave. That flies in the face of the video which shows Ms. McDonald to stay at the back gate until Ms. Dean took her phone. By taking her cell phone Ms. Dean was noticeably ratcheting up the incident. She increased the level by taking her phone into the backyard which caused Ms. McDonald to follow her phone and Ms. Dean into the backyard. Ms. Dean’s explanation that she took the phone to get Ms. McDonald to leave rings hollow.

6. Similarly, her denial that taking Ms. McDonald’s phone escalated things is non-sensical, verging on absurd, as was her evidence that Ms. McDonald grabbing her phone back was a form of sneak attack from behind.

7. Her evidence that Ms. McDonald’s desire to get her phone back was not of her concern is troubling. She was holding on to it which prolonged the incident. This is a serious external inconsistency in the testimony.

8. Ms. Dean testified that she brandished the pepper spray wanting to intimidate the complainants but then said the she did not know what the contents were. She testified that the pepper spray was animal wildlife deterrent but also said that she didn’t know exactly what it was. This is both an internal inconsistency and a non-sensical position. Ms. Dean knew well what was in the spray bottle and it is absurd to say that she wanted to use something to intimidate other people not knowing what that something was.

9. Ms. Dean testified that Ms. Delcogliano was enjoying the altercation and was being mischievous but the video clearly shows otherwise. Ms. Delcogliano was seen on the video attempting to reason with Ms. Dean, using a calm voice. Ms. Dean’s attempt to testify otherwise is an external inconsistency.

10. Ms. Dean’s denial that she was not the one with aggressive tone of voice is clearly contradicted by the video.

11. Her evidence that Ms. Delcogliano smeared the pepper spray on her own face is absurd. There is no evidence to support that and a great deal of video evidence that Ms. Dean was brandishing and deploying pepper spray in her direction even if it wasn’t aimed at her.

12. Beyond those specific frailties Ms. Dean’s evidence often rambled into matters which were at best tangential. At one point Ms. Dean wanted to give evidence about Ms. McDonald’s lawyers on the landlord tenant case. I cautioned her about giving evidence about this case but after that she continued to tell me about a lawyer who had been suspended. The result is that at times Ms. Dean was testifying about what she wanted to say about her landlord tenant grievances with Ms. McDonald in very broad fashion, rather than this case.

I recognize that Ms. Dean was unrepresented but she was cautioned many times during this trial, including during her testimony, to keep to the case being tried. She disregarded this and attempted to venture into matters as far afield as Ms. McDonald’s change of counsel during the landlord and tenant dispute. It is apparent to me that Ms. Dean often wanted to talk about things that were of concern to her well beyond the charges against her.

31For these reasons I would not accept Ms. Dean’s evidence except insofar as it is supported by evidence which I do accept, principally the video tape of the incident.

32Ms. Dean’s evidence has too many frailties to accept on its own. Where her evidence is supported by the video evidence I accept it, but otherwise I reject it as incredible.

33I therefore have little difficulty in finding that Ms. Dean intentionally sprayed Mr. McDonald, and Ms. McDonald with pepper spray that day. The Crown has proven beyond a reasonable doubt that Ms. Dean pushed Ms. McDonald as she was leaving the yard and that she took Ms. McDonald’s phone from her and attempted to take Ms. Delcogliano’s phone from her by grabbing it from her hands thereby making contact with Ms. Delcogliano by force. The evidence is clear that the pepper spray held by Ms. Dean was for purposes of causing some harm to whomever it landed on. Ms. Dean is seen to aim the spray toward both Ms. McDonald and her nephew Kevin.

34Ms. Dean has two available defences on charges 1 – 5: self defence under s. 34 and defence of property under s. 35.

35Self-defence under s. 34 of the Criminal Code is:

34 (1) Defence — use or threat of force A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.

34 (2) Factors In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person's role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person's response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

36Defence of property is:

35 (1) Defence — property A person is not guilty of an offence if (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (b) they believe on reasonable grounds that another person (i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (c) the act that constitutes the offence is committed for the purpose of (i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (d) the act committed is reasonable in the circumstances.

37Mr. Foreman concedes that, as regards s. 35 Ms. Dean satisfied components (a), (b) and (c). In other words, the Crown concedes Ms. Dean was in peaceable possession and believed on reasonable grounds that the complainants were entering her backyard without a legal basis and assaulted them by hand and with pepper spray for the purposes of preventing them access to the yard.

38As regards s. 34 I have some difficulty with the first component s. 34(1) a. On the evidence before me Ms. Dean knew in advance that Ms. McDonald was present for a benign purpose, namely access to her storage unit. She knew Mr. McDonald for the same reason. There is nothing in the interaction which would cause her to believe reasonably that Ms. Delcogliano intended any force on her whatsoever. There is no reason for Ms. Dean to believe that any of the complainants had any intention to use force against her. The Crown has disproven s. 34(1)(a) on the evidence.

39Beyond that, the question is whether Ms. Dean’s actions were reasonable in the circumstances, which is a component to both self-defence under s. 34 and defence of property under s. 35. That is the key issue in this trial. S. 35 imposes the same requirement as s. 34 – a reasonableness standard in the circumstances. S. 35 does not have the same level of statutory detail as s. 34. With that said, the factors listed under s. 34(1)(c) are not exclusive. Both must be assessed objectively, see R. v. Curran 2019 NBCA 27. A failure by the defendant to retreat is a relevant factor if the defendant could have retreated in the circumstances, see R. v. Abdalla 2006 BCCA 216, 38 C. R. (6th) 366 (Alta. C.A.). When considering self-defence under s. 34 the “persons role” in the incident must be considered broadly, see R. v. Khill 2021 SCC 37.

40Given the lack of enumerated factors in s. 35 (1) (d) I find that Ms. Dean cannot be expected to know the precise response required, and generally speaking conduct is reasonable if it falls within a range of appropriate responses. A reasonable response is required, not one of perfection, see David Watt Manual of Criminal Jury Instructions (2d ed) at page 1184.

41With the legal backdrop established I am prepared to make the following findings.

1. This was a dispute about access to a storage facility in the basement of the building in which Ms. Dean was a tenant. The evidence is uncontradicted that the complainant’s access to that storage unit did not interfere with Ms. Dean’s use of her apartment whatsoever. Both could be accessed by going through the back yard but there nothing on which I could find that Ms. Dean was prevented from accessing her apartment while the complainants were accessing the storage unit. She was free to carry on and go into her apartment. She chose to stay and cause a conflict. She was the author of this incident from the beginning.

2. Ms. McDonald gave Ms. Dean 24 hours notice that she would be in the yard and the purpose. Ms. Dean may not have liked Ms. McDonald accessing her storage unit but that is beside the point. Ms. Dean knew the purpose was benign, because Ms. McDonald communicated that to her. There is no basis for me to conclude that the complainants were there that evening for anything nefarious or threatening. I find to the contrary that Ms. Dean was simply standing on her legal right, such as it is, to prevent the owner of a building to enter its basement for personal purposes. Ms. Dean’s protestations at the beginning that the notice provided was insufficient is proof of that. Ms. Dean was objecting to the form of notice, because it was given on Mother’s Day and not within regular business hours during the working week. She was never claiming that access was impossible.

3. None of the complainants were seen to brandish a weapon or anything which could be seen as a weapon. They did brandish cell phones for the purpose of recording the incident, as did Ms. Dean.

4. Ms. Dean was unresponsive to the complainant’s various attempts to de-escalate the situation. That was her choice. On the evidence before me the complainants were motivated to avoid a conflict and did their best to avoid one. Ms. Dean was the one who escalated the conflict from the beginning.

5. Ms. Dean showed herself fully able to defend herself. Her physical size appears to me to similar to Ms. McDonald and Ms. Delcogliano but smaller to Mr. McDonald. There is no significant physical disparity which would lead me to find that Ms. Dean needed to respond this way.

6. Ms. Dean and Ms. McDonald had a previous relationship of acrimony but it was legal acrimony. They had been disputing their landlord tenant relationship before the appropriate legal tribunal for some time. This was a legal dispute as it started out.

7. Ms. Dean tried to take Ms. Delcogliano’s cell phone for no apparent reason and then succeeded in taking Ms. McDonald’s cell phone for no apparent reason. This increased the conflict for no apparent reason. It was after that Ms. Dean pushed Ms. McDonald as Ms. McDonald was leaving the yard. If left alone Ms. McDonald was leaving quickly. Ms. Dean’s shoving of Ms. McDonald was gratuitous and unnecessary. Similarly, there was no reason for Ms. Dean to grab at Ms. Delcogliano’s phone. That was an assault. That too was gratuitous and simply served to add physical conflict to what was by then a verbal conflict.

42For these reasons I easily find that assaulting Ms. Delcogliano, Ms. McDonald and using pepper spray as she did were not reasonable in the circumstances. I therefore reject the self-defence argument as well as defence of property.

43I further find that Ms. Dean reasonably knew that spraying pepper spray at Kevin McDonald and Ms. McDonald would spray pepper spray in the vicinity of both of them which included Ms. Delcogliano. She may not have been an intended target, like the other two complainants but getting hit with the spray was an entirely foreseeable consequence of her assault on both McDonalds. I make this finding based on the proximity of Ms. Delcogliano to the other two complainants, the direction Ms. Dean was intentionally pointing the spray bottle, and her knowledge that Ms. Delcogliano was at the gate during the incident. Indeed, Ms. Dean had tried to take Ms. Delcogliano’s phone while she was there. The pepper spray which is seen on the video being deployed by Ms. Dean has some focus to it but it has limited precision. It is reasonably likely that spraying it would hit bystanders.

44Was the pepper spray a weapon? Ms. Dean was clearly in person possession of the spray bottle, which she is shown to have sprayed at Ms. McDonald and Mr. McDonald. It is an overwhelming inference that the bottle contained a chemical which causes serious irritation to anyone in its path. The seizure and expert evidence amply support the finding that Ms. Dean had pepper spray in the bottle. That is not the end of the matter. In order convict the Crown must prove a dangerous purpose to the public in the instant before its use, see R. v. Proverbs (1983), 9 C.C.C. (3d) 249 (Ont. C.A.). Strictly defence weapons may not attract culpability under s. 88 of the Criminal Code depending on the circumstances, see R. v. Kerr 2004 CarswellAlt 811 (SCC), R. v. G.(D) (1999), 139 C.C.C. (3d) 191 (Ont. C.A.).

45For these reasons the Crown has proven beyond a reasonable doubt that there was no genuinely defensive purpose to the spray bottle of pepper spray. I find that it was possessed by Ms. Dean and deployed by her for purely aggressive purposes and to inflict harm on each of the complainants.

46For these reasons Ms. Dean is found guilty of each charge on the Information.