Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Naveen Polapady

Before: Justice P. Harris

Judgment delivered on: February 28, 2014

Counsel:

J. Flaherty for the Crown
C. Barry for the Defence

Harris, J.:

The Charges

[1] Naveen Polapady was charged with assault causing bodily harm and assault with a weapon (a broom handle) in relation to an incident occurring on August 21, 2011. The Crown proceeded by summary conviction and the defendant pleaded not guilty.

The Background

[2] Emanuel Belo, a 51-year-old bricklayer, testified he was collecting empty bottles and beer cans for refunds as he travelled by bicycle along the back lanes of stores on Bloor Street West in Toronto at 7:30 a.m. on a Sunday morning, August 21, 2011. He stated that he stopped behind a Bloor Street West restaurant to check the back of the premises for empties. He gave evidence the owner came from the parking lot behind him and suddenly threw "like spaghetti sauce" (hot Indian cooking spice) in his face, all over his head and his backpack and in his eyes and began hitting him with a broomstick demanding, "Where's my GPS? Where's my GPS?" He stated his "vision was impaired," his "breathing was impaired," his eyes were "stinging" and he "had a hard time to breathe." After a scuffle, he rode home on his bicycle, stopping once to wash out his eyes using a water hose at the side of a house. The owner of the restaurant followed Mr. Belo to his residence, while communicating with 911 emergency dispatch from his vehicle, and directed police to where he lived. Police attended Mr. Belo's residence and he was arrested on a charge of assault on the restaurant owner.

[3] On arrest, Mr. Belo had numerous welts on his body and he was bleeding from a head wound that required 6 stitches to close. Police investigated his injuries and then checked the video footage from a security camera at the back of the Bloor Street restaurant that showed the incident. On the basis of this further investigation, they released Mr. Belo and arrested Mr. Polapady, the owner of the restaurant. On the 911 transcript Mr. Polapady reported that he was in pursuit of a thief who had just hit him behind his restaurant and who had stolen a computer and a GPS from his van four days previously. It is an agreed fact at this trial that Mr. Polapady was wrong about Mr. Belo being the thief who stole his equipment and that another individual, Jason Miller, had burglarized Mr. Polapady's van and stolen his computer and GPS on August 17, 2011.

[4] Naveen Polapady testified that he emerged from his restaurant with a half empty container of chicken masala chili spice in his hands intending to proceed to a food storage area to retrieve more for the day's kitchen preparations. He stated he saw Mr. Belo trying to break into his storage van at the back of his restaurant and upon asking him what he was doing ― he was charged at by Mr. Belo and attacked with a stick. He gave evidence that he threw the spice on Mr. Belo in self-defence fearing for his life and the safety of his family. He testified he was hit a number of times and managed to get away after briefly gaining control of the stick. After Mr. Belo left the area on his bicycle he followed him and directed police to where he was located. He stated that he acted in self-defence in fear of his life at all times. He further testified that he believed the man who was attempting to break into his storage van on August 21st, 2011 was the same man who he had seen on the security camera footage of August 17th, 2011, stealing the computer and GPS from his van and at his back door on August 20th, trying to pry the door lock open.

The Main Issues

[5] The factual dispute in this case centres on: (1) what Mr. Belo was doing at the back of the Maroli Indian Kerala Restaurant at 7:30 am on a Sunday morning and what type of contact occurred between Mr. Polapady and Mr. Belo after they encountered each other, and (2) whether Mr. Belo began acting aggressively towards Mr. Polapady, such that Mr. Polapady was justified in striking Mr. Belo in self-defence. In its simplest terms ― it is a case of who attacked whom.

The Crown Position

[6] The Crown takes the position that the defendant committed an assault with a weapon that resulted in bodily harm to Emanuel Belo that was unlawful and not legally justifiable on the basis of self-defence.

The Defence Position

[7] The defendant submits that his use of force against the person of Emanuel Belo was lawful. It was argued that he was justified in using reasonable force to protect himself from further blows from the stick wielded by Mr. Belo. He further asserts that he used no more force than was proportionate to the immediate need and he acted in justifiable self-defence.

The Law

[8] When the incident that occurred on August 21, 2011 took place, the law of self-defence was governed by subsections 34 to 37 of the Criminal Code. On March 11, 2013 the Citizen's Arrest and Self-defence Act, S.C., 2012 C.9 came into force. The Act repealed subsections 34 to 37 and replaced them with a new section 34, which now applies to all situations in which self-defence is raised. The amended defence now provides, as follows:

2. Sections 34 to 42 of the Criminal Code are replaced by the following:

34. (1) 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

(2) 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;

(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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[9] On the basis of the recent Superior Court of Justice decision in R. v. Pandurevic 2013 O.J. No. 2380, (which, while not binding authority, presents a well-crafted argument for retrospectivity), and the view I take that the new self-defence amendments are more favorable to self-defence claimants than the former ss. 34 to 37 of the Code, the defendant should have the benefit of the new provisions. I further take into account the position of the defence that the new amendments should be applied retrospectively to the date of this incident, August 21, 2011. I have also considered the fact that for nearly twenty years, the justice system has struggled to try to make sense of some obvious drafting errors and inconsistencies in the old self-defence provisions: see R. v. McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.). MacDonnell J. in Pandurevic determined that the self-defence amendments apply retrospectively and that the new enactments respecting self-defence should have immediate application notwithstanding that the conduct underlying the defence occurred prior to the coming into force of the amendments: (at paragraph 43).

[43] For the reasons I have expressed, I am of the view that to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate. That is a factor that strongly suggests an intention for a retrospective application. Further, the strength of the presumption against retrospectivity is attenuated by the fact that the amendments will overwhelmingly be beneficial to those who claim to have acted in self-defence and that any adverse impact of a retrospective application will be isolated and minimal. A consideration of all of the circumstances, in my view, gives rise to a clear and compelling inference that Parliament meant for the amendments to have immediate application at all trials in which the defence of self-defence was asserted.

[10] In addition, the applicable principles require this Court, where the defendant asserts self-defence to justify his actions, to determine whether the Crown has proven beyond a reasonable doubt that the defence does not apply: R. v. Cinous (2002) 2002 SCC 29, 162 C.C.C. (3d) 129 at paragraph 39 (S.C.C.). The elements of the new defence are:

(a) the defendant had a reasonable perception force is being used against his self – s. 34(1)(a);

(b) the act was committed while defending oneself from the use or threat of force - s. 34(1)(a);

[11] The Crown is not required to prove beyond a reasonable doubt that the defendant's conduct fails on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the elements is not established: R. v. C.J.O. (2005) O.J. No. 5006 (Ont. C.A.).

[12] Additionally, I am mindful of appellate level admonitions to the effect that trial courts are not to look at the consequences of the defendant's actions in terms of resulting injuries, but rather, the reasonableness of the force used in repelling the complainant's attack which was occurring: R. v. C.J.O., supra; R. v. Baxter (1975) 33 C.R.N.S. 22 (Ont. C.A.).

[13] Finally, there is no question that invoking the defence of self-defence, an accused's actions can only be justified if he or she is repelling force with force. In other words self-defence cannot be used as 'a cloak or a means to injure someone': R. v. Flood (2005) O.J. No. 3418 (C.A.). Similarly, if someone acts in anger or frustration to retaliate, rather than to defend himself or herself, there can be no defence: R. v. Parker (2013) 2013 ONCJ 195, O.J. No. 1755 (Ont. C.J.).

[14] Finally, I have employed the credibility formula articulated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.) and have been mindful of the requirement that I avoid the common mistake made by trial courts of treating the evidence as a contest involving a choice of which body of evidence I prefer, the evidence adduced by the Crown or the defence. As Cory J. noted: "It is particularly important in a case in which the prosecution depends on the credibility of the complainant and the accused testifies, that it be very clear and unequivocal that the prosecution has not proved its case beyond a reasonable doubt if, after considering the evidence of the accused and the complainant together with any other evidence, there is a doubt".

Fact-Finding Analysis

Emanuel Belo

[15] In my view Emanuel Belo was generally an honest witness. I have considered his testimony and defence submissions about his inaccuracies and inconsistencies and I have concluded they do not undermine his credibility ─ primarily because the essential features of his evidence were logically consistent, plausible, and delivered in an open and straightforward manner. The following are some of the reasons I have arrived at this conclusion:

(a) Mr. Belo describes the initial blows with the broomstick (after the spice was thrown in his face) is such a way as to negate any possibility of fabrication. He could not have known about the stolen GPS from Mr. Polapady's van, yet he describes the attack in such revealing, tell-tale language: (from p. 129, transcript of April 19, 2013)

Q. At any stage did you ever say anything to this person throughout the whole incident?

A. Yes, I was pleading with him, stop, stop, and I was telling him I'm here, I told him, I'm saying, I was saying, I'm just collecting empties, I don't have a GPS, I'm just collecting empties, I don't have a GPS, but all I keep getting was wacked, where's my GPS, whack, where's my GPS.

Q. And when you say whack, you're making the noise…..

A. Yeah, the impact of the stick, yeah.

(b) Mr. Belo testified he was at the back of the restaurant at 7:30 a.m. collecting empty liquor bottles and empty beer cans to turn in for cash refunds. His credibility in this regard is bolstered by the fact that on arrest, the contents of his backpack were photographed by the police and reveal (Exhibit 8(j)) a quantity of those very items. He testified as follows: (from p. 122, transcript of April 19, 2013)

Q. And did you have that backpack on August 21, 2011, when you were going to the laneway you just described?

A. Yes.

Q. All right. And if I showed you another photo exhibit, eight 'j', can you tell me what that depicts and whether that looks familiar to you?

A. That's my backpack with liquor bottles and empty beer cans in it.

Q. Okay. And was that the state of the bag when you found yourself in police company on August 21 of 2011 back at ----

A. Yes it did.

(c) Most telling is the fact there is nothing in the evidence that offers the slightest reason for Mr. Belo to gratuitously charge at Mr. Polapady wielding a stick and begin beating Mr. Polapady with it ─ if, as Mr. Polapady claims, he only asked "what he was doing". This of course does not mean there could be no reason for such an attack, but when one considers the lack of any obvious motive for such an attack coupled with the circumstantial evidence, one is readily drawn to the conclusion that the evidence supports Mr. Belo's version of events. The following is the circumstantial evidence that is confirmatory of Mr. Belo's account:

(i) The welts on Mr. Belo's body, particularly on his right forearm and wrist suggest he had adopted a defensive posture. While momentarily blinded by the masala chili spice, it appears he was struck over the head with the broomstick and the most probable explanation for the arm welts was that he was struck on his arms when he raised them in an attempt to protect his head. The injuries to his head, arms and leg are more indicative of a beating than a few blows struck in self-defence. This evidence supports Mr. Belo's description of events.

(ii) Further, the red coloured "sauce" on the ground behind the white van (see exhibit 5(e)) is more consistent with the defendant carrying the chili spice to where Mr. Belo said he was straddling his bike and bending over to examine two bottles to see if they were liquor bottles (other bottles have no value). He states (at page 125, transcript of April 19, 2013) that, "It was, as I was lifting, turning my bike and lifting my head, it [the sauce] was thrown directly in my face." As well, there is chili sauce splattered on the front and back parts of Mr. Bello's bike (see exhibits 8 (c), (e) and (f)), suggesting he was on the bike when the burning substance was thrown in his face. The physical evidence of where the sauce landed is more consistent with Mr. Belo's testimony that it was thrown in his face as he turned on his bike, than with Mr. Polapady's version of events involving Mr. Belo charging at him with a stick.

(iii) There is no evidence on the security videos that Mr. Belo on any date, ever drove his bicycle to the rear of the restaurant while carrying a length of broomstick. On the basis of human experience, given the obvious strength differential between the two men, (Mr. Belo worked as a bricklayer and Mr. Polapady describes him as being taller, more strong, rugged, and very aggressive), it seems unlikely in the extreme that Mr. Belo attacked him with a length of a broomstick and somehow Mr. Polapady was able to take the broomstick away from Mr. Belo and deliver a rather severe beating with it. The preponderance of circumstantial evidence suggests a blinding attack with a debilitating substance followed by many blows with the stick ─ a scenario that is more in keeping with Mr. Belo's rendition and what can be seen on the abbreviated video clip from August 21st.

[16] These facts do not mean that Mr. Belo was not the aggressor in the incident but it makes the inference of such conduct much less likely, given the fact Mr. Belo was the relatively stronger individual. I am satisfied Mr. Belo's evidence was generally consistent, logical, and plausible and any mistakes in any of the details of what happened on August 21st, are entirely understandable given the sudden distress and confusion he likely experienced after the shock of the irritating substance splashing in his face and the serious blow to his head.

[17] Counsel for the defence, Mr. Barry has raised a number of issues about Mr. Belo's evidence that he describes as an "unlikely tale concocted to explain away inappropriate behaviour by Mr. Belo". I have considered all of the points raised by the defence and I propose to deal with the most substantive concerns:

(a) It is argued the video footage of August 21st shows Mr. Belo as the aggressor. In fact, the only observations possible given the missing segments of the video, show Mr. Polapady striking Mr. Belo over the head with a stick and Mr. Belo not only trying to defend himself but, cautiously leaving the parking area in the opposite direction from where Mr. Polapady had gone.

(b) The defence submits Mr. Belo admitted to having the broomstick in his hand. A careful review of the transcript June 20th, page 41 indicates Mr. Belo said he "managed to get the stick from his hand." On page 66 he denies coming at him with a piece of wood. He says on page 104, "When I went to take the stick out of his hand we were actually up to the vehicle". On page 122 he says, "I was never off my bike until I got the stick out of his hand". (Considering these references and what can be observed on the video of August 4, 2011, it is clear he is talking about knocking the stick out of Mr. Polapady's hand as they are seen to be scuffing close to and against the vehicle, not wilding the stick against Mr. Polapady.

(c) P.C. Mirza testified that Mr. Belo was not on his bike when approached by Mr. Polapady. Mr. Belo is clear that he put the bike on its stand, looked for a bottle and remounted his bike and was turning to leave when he was hit in the face with the chili spice. As the defence points out on page 5 of written submissions – "the chili pepper found on the bicycle is consistent with someone being on a bicycle." It is likely that there is no discrepancy here – P.C. Mirza simply did not see the entire event.

(d) The defence refers to Mr. Belo's answer on page 57 of the June 20th transcript as evidence of his intention to break into the van. The question asked on page 56 was, "Did you ever find bottles on that bumper of the white cube van that I'm suggesting that you tried to break into? A. Yes, I have. Yeah. Q. Okay. A. No – no – not the van I was breaking into. I just seen a bottle, an empty bottle on the bumper and then I put it in my bag". In my view this is not an admission to a break-in, just an answer to the bottle question and a thoughtless repetition of a hidden assumption in the question. He was very clear at other times in his evidence that he was not trying to break into the storage van (see page 55, June 20th transcript).

(e) The defence is correct that Mr. Belo initially denied being at the back of the restaurant on August 20 and in this denial he is incorrect. The evidence was that Mr. Belo had 8-10 beer "the day before this happened" [August 20th] – page 76, June 20th transcript. His explanation for his insistence to the police that he had not been there on August 20th and his initial denial in court that he was there on August 20th, was explained as follows: "I don't remember being there on the Saturday before [August 20]. I honestly don't" – transcript, June 20th, page 91. I am prepared to accept based on the beer he drank late on August 20th and the routine nature of his bottle collection activity, he could have simply have forgotten he went by on his collection route on August 20th, 2011.

Naveen Polapady

[18] Mr. Polapady testified and provided his perspective on a number of points. He gave evidence that he operated the Maroli Restaurant at 630 Bloor Street West and that he lived with his family on the 2nd floor above the restaurant. As a result of security concerns he stated he installed a video surveillance system over the parking area to the lane behind his building. There is a lane running parallel to Bloor Street at the back of the parking area. He testified that on August 17, 201l, his van parked behind his building was burglarized and a laptop computer, a camera, a cell phone and a GPS were stolen. He later watched the theft take place on the video system he installed.

[19] Mr. Polapady gave evidence that on August 20, 2011, in the early morning hours he was in the kitchen close to the back door of the restaurant when he heard a pulling sound at the door handle. He stated he went to the door and it would not move and required force to make it open. He said he noticed damage to a metal plate in the latch area of the back door. He then viewed the security camera and noted the appearance of a person coming towards his back door at the time he heard some interference with the back door while in the kitchen.

[20] The next day, August 21, 2011, at about the same time as the previous day's incident, he gave evidence he opened the back door and was carrying a half full container of chicken masala spice, intending to go to the white storage cube van parked in the back of his premises to obtain some spice for the day's cooking needs. He testified he saw the man who was there the day before [the same man he believed he also observed stealing from his van on August 17th] ─ at the white storage van attempting to pull open the back door and asked "What are you doing?" He stated he reached for a cell phone and said, "I'm going to call the cops". He had come behind Mr. Belo in a "looping movement." He was 4, 5 feet away according to Mr. Polapady and then "he grabs a stick and charged toward me".

[21] Mr. Polapady testified he had the spice container in his hand and to protect himself he said, "I put it on his face". He stated "He grabbed me by the face and said, 'I'm going to kill you'". He stated "the masala spice did not stop him from attacking me". "I grabbed the stick". The defendant gave evidence that, "then the fight started". "He was hitting me, punching me strangling me." He testifies, "I lost the stick, I escaped from him. I couldn't defend myself." He stated Mr. Belo said 'I'm going to kill you". "I was scared, my door was open, family upstairs asleep". He then described how he followed Mr. Belo and reported his whereabouts to the police. Mr. Polapady was shown the video surveillance of August 17 and 20, 2011 and told the Court that the person depicted on the screen on both days was Mr. Belo. It was jointly agreed by counsel that Mr. Belo was only seen on the video footage of August 20th in the vicinity of the backdoor of the restaurant for a few seconds, and the person stealing from the van on August 17th was not Mr. Belo.

[22] I have considered the forgoing at length and I have determined that Mr. Polapady is not believable on the key issues in this case. I am fortified in this conclusion by the following:

(a) The August 21, 2011, 911 call transcript of Mr. Polapady reported the "bike riding thief" to police contains the following exchanges:

Dispatch asks why he is following the man…

N.P: He was caught stealing on the camera for a…

Dispatch: Stealing what?

N.P.: GPS and laptop from my car and today I caught him red handed in the same premises….

Dispatch: What did he do [today]?

N.P.: He hit me.

Dispatch: With what? His fist?

N.P.: With his hand.

Dispatch: Ok.

N.P.: I tried to put chili powder on him…and he hit me.

Dispatch: Why did you try to put chili powder on him?

N.P.: Because he was trying to hit me.

Dispatch: Where did he hit you?

N.P.: On my hand, chest and he tried to strangle me….

Dispatch: So he didn't have any weapons?

N.P.: No.

On the basis of the foregoing exchange it is clear that on August 21, Mr. Polapady thought he had caught the thief (he observed on video surveillance dated August 17) red-handed. It was also clear from the 911 transcript that Mr. Polapady reported that the "thief" did not have any weapons. He hit me… with his hand." However, in contrast with the exchange during the 911 call, Detective Chris Chilvers interviewed Mr. Polapady later the same day and advised that the video of August 17th "shows a different male" – to which Mr. Polapady responded that it was self-defence and the male "had a stick", a clear departure from his earlier position that the male had no weapon.

(b) P.C. Chris Meuleman was involved in the arrest of Mr. Belo and then was sent by Detective Thompson at 1:14 p.m. August 21 to 630 Bloor Street West to obtain a video of the incident at the back of the restaurant. He testified he saw the start of the August 21 incident (that was missing from the copy later turned over to the police by Mr. Polapady) and observed Mr. Polapady come from between two cars carrying a stick and container in his hands", "he approached Belo", and threw something in his direction. He stated Mr. Polapady is wielding a stick and "Belo is hit with the stick", "at first", they go back and forth and "Belo gets on the bike and takes off". He gave evidence Mr. Polapady approached from "the top right part of the screen", in other words from the lane area. The evidence, if believed, greatly damages the defendant's credibility. While I would generally be skeptical of an officer's evidence when his only note of this is "male approaches and complainant [Mr. Polapady] came from between the cars", P.C. Meuleman stated he watched the video "multiple" times, he had no reason to make a note of what he saw while he still believed he would be provided the video, and the video was one of the factors that resulted in Mr. Polapady being charged. For these reasons I found this officer credible and Mr. Polapady's evidence is correspondingly less worthy of belief.

(c) P.C. Shahrukh Mirza testified that just after 7:40 a.m. on August 21, he spoke to Mr. Polapady in his vehicle outside Mr. Belo's residence. At this time Mr. Polapady was the complainant and advised that he believed the male he followed broke into his vehicle on August 17th, four days before. P.C. Mirza was told the incidents were on video at the restaurant, so at 8:30 a.m. he went to see the video of the 3 incidents that took place on August 17, 20 and 21. P.C. Mirza observed that the male in the August 21st video was the same male he saw on the August 20 2011 video. He states, Mr. Polapady advises that on August 21st, "I waited in the park for him and within one minute he shows up". He said Mr. Polapady told him he had a broom handle and homemade chili inside an empty yogurt container. While it was clear P.C. Mirza did not see the same August 21 video as PC Meuleman, he did have a note to the effect that the "complainant [Mr. Polapady] approaches suspect from behind and anything that occurs is off camera". This evidence, which I accept, raises an inference that Mr. Polapady armed himself with weapons, lay in waiting in the park and came at the "suspected thief" from behind as he arrived on his bike. This evidence casts considerable doubt on Mr. Polapady's version of events.

(d) One of the most troubling aspects of Mr. Polapady's testimony was the fact he described in considerable detail how he believed that on August 20 Mr. Belo had pried a metal plate off the back door of his restaurant, ostensibly with a view to entering the premises for a criminal purpose. He further testified about seeing Mr. Belo trying to break into his storage van as he emerged from his back door to fill the spice container on August 21 yet with one minor exception, he does not tell the investigating officers of these very recent criminal 'offences' allegedly occurring on his property which one would surmise would be foremost in his mind. The most telling is the fact that the description given to 911 call dispatch operator on August 21 is merely: "he is a P.C., he is an auto thief". The inference I draw is that the failure to describe what had to be his most recent and most serious concerns about Mr. Belo, during the period he was a complainant on August 21st, raises considerable doubt as to whether there was ever an attempt to break into his restaurant and his storage van. Mr. Polapady did say to P.C. Mirza that Mr. Belo was trying to open the door to his restaurant on August 20th, which, if it occurred, would have at least merited some complaint to police about how Mr. Belo allegedly tampered with the door lock (see Ex 14, a photo introduced by the defence that purports to show damage allegedly caused by Mr. Belo).

Conclusion

[23] In all the circumstances, I do not accept Mr. Polapady's evidence and it does not raise a reasonable doubt. On the other hand I'm convinced, in regard to all the evidence, that no reasonable doubt arises, and that the Crown has disproven beyond a reasonable doubt that the assault on Mr. Belo meets the necessary force requirements of section 34(1) of the Code. The nature of the force used by Mr. Polapady was not based on a reasonable perception of force against his person, nor did he have a defensive purpose to his actions, nor from an objective point of view was his striking Mr. Belo reasonable. In coming to this decision, I bear in mind the nature of the assault that Mr. Belo sustained, that Mr. Belo was trespassing on private property, and was probably being cavalier about whether there ever was ─ if not an implied consent to proceed onto the property of store owners ─ at least an informal acquiescence in his recycling practices. I recognize the fact that Mr. Polapady was incensed about his van being burglarized and was to some degree, hyper-sensitive about strangers entering upon his property at the back of his restaurant. It may have been reasonable for Mr. Polapady to have rather sternly admonished Mr. Belo for entering his property, and to have even used some force to eject him.

[24] Yet Mr. Polapady went far beyond what was required. In my view, there was no reasonable perception of force being used by Mr. Belo, no defensive purpose on the part of the defendant and no objectively reasonable basis for using force in self-defence. Even in the emotional state Mr. Polapady found himself in, after the theft from his van, I have no doubt that a reasonable person would have recognized that Mr. Belo was not actually seen committing an offence on August 21st and that all that was required, if he believed the man was the August 17th thief, was to either hold him for the police or follow him and direct police to his location (which he eventually did). In all the circumstances the evidence overwhelmingly points to an individual who was so sure he had the GPS thief and so angry about the loss of his property, that he waited for the predictable return of Mr. Belo with weapons in hand to teach him a lesson.

[25] Indeed I am satisfied beyond a reasonable doubt that Mr. Polapady was acting out of anger, not self-defence. The most relevant of the nine factors listed in section 34(2), are: "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" and "the person's role in the incident." In my view the use of force was not imminent and Mr. Belo's role was passive and non-threatening. Clearly this incident would not likely have taken place had Mr. Polapady not suffered a theft from his van four days previously. That this was a case of mistaken identity colours the entire event and in all the circumstances, the use of force by Mr. Polapady was not called for and was unreasonable and not justified in self-defence.

[26] I therefore find Mr. Polapady guilty of assault with a weapon and assault causing bodily harm on Emanuel Belo on August 21st, 2011.

Harris, J.

February 28, 2014.

R. v. Polapady, 2014 ONCJ 121

Case Summary