Court Information

Sault Ste. Marie Court Information No.: 1229

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Tyler Wood

Judicial Information

Before: Justice John Kukurin

Heard on: December 18, 2012

Reasons for Judgment released on: January 11, 2013

Counsel:

• Mary Pascuzzi, for the Crown
• Eric McCooeye, for the accused Tyler Wood

Reasons for Judgment

KUKURIN J.:

[1] These are the Reasons for my decision following trial of the accused on a charge of assault with a weapon pursuant to section 267(a) of the Criminal Code.

[2] The factual allegation underlying this charge is that the accused, Tyler Wood, sprayed the complainant, Ricardo Policicchio, in the face with bear spray.

[3] The defence is not a denial that this took place. Nor is it a defence of self-defence. The accused asks this court to reject the evidence of the complainant, to conclude that a reasonable doubt exists with respect to the guilt of the accused, and to find him not guilty of the charge.

[4] If one believes in the principle of cosmic justice, the incident that forms the basis for the offence in this case fittingly exemplifies this principle.

[5] The accused and the complainant are drug users; in fact, are almost unquestionably addicts. The complaint's drug of choice is cocaine; the accused's is percocets. Each had access to a source of the other's drug of choice. Once they became acquainted, they gravitated to a bartering relationship exchanging percocets for cocaine. This felicitous arrangement was illegal, not only because neither charged the other HST, but more so because what they were doing was trafficking in illegal drugs.

[6] This is what they were doing shortly after midnight last May, as they had done more than half a dozen times before. The venue for this swap transaction was the parking lot serving the housing complex where the complainant was living. The accused had texted the complainant to meet him outside his home. The negotiations took place in the accused's car in this parking lot.

[7] Although they had enjoyed a history of successful exchanges, on this particular night, their affair went off the rails. Rather than a trade, the transaction that night was more in the nature of a purchase and sale.

[8] The accused had no cocaine. He had some money and wanted to buy some percocets. In his testimony, he gave the complainant $40 expecting eight pills (at $5 a piece). The complainant took this money, left the car, went into his residence ostensibly to get the percocets.

[9] The complainant, however, did not have any percocets. According to the accused, the complainant returned, sat in the passenger seat, and produced some pills that were not percocets. An argument ensued. It escalated to recriminations and threats. Ultimately, both exited the car and the accused sprayed the complainant in the facial area with "bear mace". The accused then drove away, apparently without his $40 and leaving the bear spray canister behind on the ground.

[10] This is not exactly the story that the complainant recounted in his testimony. He claims he was only given $20, which he says he returned to the accused. He admitted that he was intending to "stiff" the accused, as he had no percocets to give him. He claims he called off the entire transaction, but the accused was insistent on obtaining the drugs that he had come to get. He denies that he "ripped off" the accused.

[11] This is the lead up to the actual spraying incident. Not unexpectedly, each of the accused and the complainant has his particular version of how that actually played out.

[12] The complainant's story is that he decided to leave the car when the argument evolved into threats. He claims that he opened the passenger side front door, stepped out, and while he was standing, still holding the door open, the accused let loose with the spray across the roof of the car, hitting the complainant mostly on the left side of his face.

[13] The accused tells a much different story. He agrees that they were arguing in his car. He claims that he just wanted his money back and then he would leave. But it was never returned. He claims that the complainant was becoming more verbally aggressive and threatening, getting "in my face". The accused was backed up to his driver's side window. At some point, the complainant got out of the car, angry and swearing.

[14] That he sprayed the complainant is not denied by the accused. He claims the complainant, markedly larger and heavier than him, was coming around the car to his driver's side. The complainant was visibly angry and, according to the accused, the complainant had been drinking alcohol that night. The accused fearing a physical attack, and, remembering that he had bear mace between the front seats, snatched this canister and sprayed the complainant. This took place somewhere outside of the vehicle.

[15] These are very discordant accounts of what took place. Clearly they cannot both be true. This raises the question of which one is lying, and perhaps more pertinently, which is the bigger liar.

[16] The essence of the accused's case is that the Crown's evidence, which is comprised almost totally of the testimony of the complainant, ought not be believed because it is unreliable. Moreover, if the court comes to this conclusion, the entirety of the complainant's evidence should be rejected. The court should not engage in the process of selecting out parts of the evidence that it believes, and parts it does not.

[17] The accused wishes this court to make not only an adverse finding of credibility with respect to the complainant's testimony. He wants that finding to be acutely adverse, and he wants it to be all encompassing. He wants this court to believe nothing the complainant said.

[18] A complete rejection would essentially destroy the case of the Crown which has the onus of proving the charge beyond a reasonable doubt.

[19] Firstly, I do not agree that evidence of the complainant should be completely rejected. There are clearly weaknesses in this evidence but these are no so serious, nor so extensive, that the evidence warrants a complete rejection. For example, failing to tell the investigating police officer that the business being transacted was an illegal drug deal is an understandable omission in the statement of the complainant to the police. That the complainant forgot that he left the car to go into his residence (until cross-examined on this) is a convenience memory lapse of a detail that is not critical to the proof of the offence charged.

[20] Secondly, the accused's exhortation to this court is to desist from doing precisely what courts and judges are supposed to do. That is to consider all of the evidence, to reject what is inadmissible, to weigh what is admissible, and to decide whether what is left does or does not meet the required standard of proof of the offence charged.

[21] Thirdly, despite disparities in the testimonies of the complainant and of the accused, there are many things upon which they agree with each other. The comprehensive rejection of Crown evidence advocated by the accused would mean rejecting much of what he himself proclaimed to be true. This all or nothing approach is much too crude a manner of dealing with evidence.

[22] Fourthly, I am left with the uncontradicted, in fact, the corroborated critical fact that the accused sprayed the complainant with bear spray. There is absolutely no suggestion that this did not happen. How it happened is relevant only if it is tied in some way to a defence. In this case, it is not.

[23] That the bear spray was a "weapon" goes almost without saying. In fact, under the Criminal Code, it is classified as a "prohibited weapon", possession of which is legally permissible only with an authorization or license. Why the accused had a canister of this in the passenger compartment of his car, at midnight, in town, was explained by him with the flimsiest of reasons, and why he was in possession of a prohibited weapon was not explained at all.

[24] The accused's testimony was equally if not more incredible than the complainant's and in the totality of this case did not negate the proof required to substantiate the offence charged.

[25] The complainant exited first from the passenger side. The accused was in the driver's seat with his window closed. He claims the complainant walked around to his side of the car. Instead of locking his door, the accused got out of the car, but could not remember at trial why or how he did so. Whether the canister of bear spray was taken by him when he first got out of the car, or whether he had to go back into the car to get it, was not explained. He was very clear, however, in explaining that he did not want to spray the complainant while the complainant was still in the car as he, the accused, would get sprayed too in such an enclosed space. This statement by him makes me extremely sceptical about his later statement that, when outside his car, he remembered that he had the bear spray between the front seats. It also confirms that he had addressed his mind to the prospect of using this bear spray on the complainant well before he actually did so. He did not deny that he did spray the complainant. There was ample evidence that the complainant was sprayed in the facial area.

[26] In summary, the essential elements of the offence have been made out, and to the criminal standard of proof beyond a reasonable doubt. Even without the evidence of the complainant, I could arrive at this conclusion.

Released: January 11, 2013

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] S. 267 Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

[2] CDSA S. 2(1) "traffic" means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

[3] From Wikipedia, the free encyclopedia: Mace is the brand name of an early type of aerosol self defense spray invented by Allan Lee Litman in 1965 after his wife, Doris, was threatened on the street. The first commercial product of its type packaged CN tear gas dissolved in hydrocarbon solvents into a small aerosol spray can usable in almost any environment and strong enough (when sprayed in the face) to act as a credible deterrent and incapacitant. Its popularity led to the brand name being shortened to simply "Mace" for all defense sprays (regardless of the composition). The original Chemical Mace formula, using only CN, has since been discontinued. Due to the potentially toxic nature of CN and generally superior incapacitating qualities of oleoresin capsicum (OC) pepper spray in most situations, CN has been supplanted by the latter in all formulas for police use.

[4] Like throwing the baby out with the bath water.