ONTARIO COURT OF JUSTICE
DATE: June 28, 2023
COURT FILE No.: Toronto 20-7500415
BETWEEN:
HIS MAJESTY THE KING
— AND —
STAVROS TSORAKLIDIS
Before Justice Hafeez S. Amarshi
Written reasons for judgment released on June 28, 2023
Counsel: A. Spieser, counsel for the Crown J. Raftery, counsel for Stavros Tsoraklidis
H.S. Amarshi J.:
A. Introduction
[1] Stavros Tsoraklidis is charged with assault with a weapon and with administering a noxious substance with intent to aggrieve or annoy contrary to sections 267 (a) and 245(1) (a) of the Criminal Code.
[2] The Crown proceeded summarily and called three witnesses – the complainant - Jason Ball, Rohan Thota - an Esso gas station clerk, and Officer Kevin Patterson who observed Mr. Ball’s injuries.
[3] Mr. Tsoraklidis testified.
[4] The events in this case take place in the early morning hours of May 2, 2020, outside of The Kitchen Table, a grocery and convenience store, near Dupont Street and Davenport Road in Toronto. The central issue in this trial is whether the defendant was acting in self-defence when he sprayed Mr. Ball with a noxious substance, specifically pepper spray. The Crown played various surveillance videos, but one in particular from a camera above the store entrance captures the moments just prior to the incident and is compelling evidence in this case.
B. Relevant Evidence
(i) Events outside of The Kitchen Table
[5] Jason Ball was completing overnight inventory when he heard a knock on the outside glass of The Kitchen Table. It was approximately 1:15 a.m. and the store had closed 90 minutes earlier.
[6] The knocking was sustained and went on for a few minutes. The complainant gestured that the store was closed.
[7] The person at the window was the defendant - Stavros Tsoraklidis. He pointed at the ATM in the store, while holding up his debit card.
[8] The defendant continued to tap on the window. Mr. Ball walked to the front door. He was concerned there may have been a medical emergency because of the consistent knocking.
[9] As he approached the door, the complainant says Mr. Tsoraklidis called him a “faggot.” Mr. Ball opened the door and asked the defendant - what his problem was? It is at this point he noticed the store’s chalk-board sign was missing, although he later clarified saying he could not remember if he noticed the sign was missing while he was inside or outside of the store.
[10] He says he walked a few steps and was struck by a wave of pepper spray. The defendant was an arms-length away – about 1 metre at the time. He recalls Mr. Tsoraklidis saying something along the lines of - “Take that.”
[11] The complainant ran back into the store and locked the door.
[12] He went straight to the kitchen and called 911. He started rinsing his head and face. Mr. Ball was in shock and disbelief. He felt pain. There were burns to his face, head, ears, chin and chest. From rinsing his face water trickled down his forearms, wrists and hands, where he felt a further burning sensation. The complainant says the burns from the pepper spray lasted for weeks. He did not seek medical attention.
[13] In cross-examination, Mr. Ball agreed he was annoyed at being called a faggot. He was further annoyed by the persistence of the knocking which he said went on for several minutes.
[14] Officer Kevin Patterson testified that when he saw the complainant about two hours after the incident, he observed Mr. Ball’s face and chest to be very red, that his eyes were bloodshot and watery. He said the complainant was shaken up and upset. He agreed that the complainant seemed angry.
(ii) Defence evidence
[15] Stavros Tsoraklidis is 35 years old. He works in construction. He has a criminal record which comprise of two entries from 2014. The first for impaired driving, for which he received a fine. He was further prohibited from driving for a 12-month period. For the second entry he was sentenced to a period of custody of just over 11 months for the use of an imitation firearm during the commission of an indictable offence. He served 202 days in pre-trial custody.
[16] The defendant recounted an incident that occurred two years ago. He was leaving Parry Sound by bus for Toronto. He was with his girlfriend. Upon exiting the bus station at Yorkdale Shopping Centre he entered the TTC station, which is nearby. At the subway platform a male approached him asking for spare change. He responded that he did not have any. The male said he did not believe him – Mr. Tsoraklidis told him to step away. As he entered the train, the male followed and attacked him. He was stabbed to the side of his body and to his shoulder.
[17] As a result of the incident, the defendant started carrying “mace” with him to be able to defend himself.
[18] He described the events of May 2, 2020. He attempted to withdraw cash at an Esso near The Kitchen Table but was unsuccessful because the ATM rejected his card. He left.
[19] Earlier, prior to going to the gas station, he saw Mr. Ball outside his store tending flowers. Mr. Tsoraklidis thought the store was open and headed to The Kitchen Table. He recalls knocking at the entrance to get the complainant’s attention. At first, Mr. Ball does not respond. The defendant pulled out his bank card to demonstrate that he wanted to use the ATM. He says the complainant nodded no. Mr. Tsoraklidis walked away. He believes he was outside of the store for about 30 seconds. About 10 seconds later he realized the complainant had exited the store and was following him. According to the defendant, Mr. Ball swore at him and further threatened him. He doesn’t recall the exact words, but it was something along the lines of, “I’m going to cut you up in little fucking pieces and I’ll throw you somewhere nobody could find you.”
[20] Mr. Tsoraklidis turned around to face the complainant. He says Mr. Ball had his hand in his left pocket. That he pulled out a boxcutter. The blade was not open.
[21] The defendant did not hesitate and deployed pepper spray. He believed the complainant was going to stab him. Mr. Tsoraklidis walked away, and he saw Mr. Ball run towards the store, that he was wiping his eyes with his shirt.
[22] The defendant testified that he did not want to fight the complainant, that he had nothing to gain.
B. Applicable Principles
(i) Credibility and the Standard of Proof
[23] This case is very much fact driven and my assessment of the reliability and credibility of the two main witnesses is a crucial feature in this case.
[24] The framework in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, applies in this case. The application of the principles of W.D. in the context of self-defence was set out by the Court of Appeal in R. v. Reid, 2003 ONCA 14779, [2003] O.J. No. 2822. Specifically, if I accept Mr. Tsoraklidis’ evidence and believe or have a reasonable doubt that he was acting in lawful self-defence I am to find him not guilty. Further even if I do not accept the defendant’s evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence I am also to find the accused not guilty.
[25] It bears emphasizing that in a criminal case, this court cannot find an accused person guilty because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests, and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on Mr. Tsoraklidis to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offences as charged.
[26] This Court can accept some, none or all of any witness’ testimony. For example, if some parts of the testimony of the defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt. [1]
[27] I further note the onus is on the Crown to prove beyond a reasonable doubt that the defendant committed the criminal offences before this court. To secure a conviction the Crown must establish each essential element of the charge against an accused to a point of "proof beyond a reasonable doubt," this standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probability. It is not a standard of absolute or scientific certainty, but it a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charges. [2]
(ii) Self-Defence
[28] I am further guided in my analysis by s. 34 of the Criminal Code, which provides that a person is not guilty of an offence: if they believe on reasonable grounds that force is being used against them or that a threat of force is being made against them; and, the act that constitutes the offence is committed for the purpose of defending or protecting themselves from that force or threat of force; and, the act committed is reasonable in the circumstances.
[29] Assuming there is an air of reality to Mr. Tsoraklidis’ claim of self-defence the onus is on the Crown to disprove self-defence beyond a reasonable doubt.
[30] It follows that the issue to be determined therefore is whether the Crown has proven beyond a reasonable doubt that at least one of the conditions for lawful self-defence was not present when the defendant pepper sprayed Mr. Ball.
C. Analysis
(i) Sections 267(a); 245(1)(a) – Assault with a Weapon; Administer Noxious Substance
[31] An assault with a weapon is committed when a person carries, uses or threatens to use a weapon in committing an assault. It is not contentious that the defendant intentionally applied force in this case. Pepper spray meets the definition of a “prohibited” weapon.
[32] Neither is it contentious that the Crown has satisfied the essential elements to ground criminal liability under s. 245(1) (b).
[33] Pepper spray readily meets the definition of “noxious.” [3] That is, it is a substance that is capable of effecting a consequence as defined in s. 245(1) (b), specifically an act intended to aggrieve or annoy. The substance was administered by the defendant with the requisite intention.
[34] The issue remains is whether Mr. Tsoraklidis was acting in self-defence.
(i) Air of Reality
[35] I have concluded there is an air of reality to the defendant’s claim of self-defence. At this stage when determining whether the evidentiary burden has been met, I am not to decide whether the defence will succeed, only whether it is capable of succeeding and therefore raise a reasonable doubt. [4]
[36] The air of reality test is only concerned with whether a given defence is put in play by the totality of the evidence, accepting the case of the accused at its highest and assuming the evidence relied upon is true. [5]
[37] In this case without making any findings of fact nor making any determinations about Mr. Tsoraklidis’ credibility, his evidence that the complainant, while facing him, had a boxcutter in his hand while uttering a threat is sufficient to raise self-defence. There is some basis to suggest the video surveillance footage shows Mr. Ball following the defendant.
(ii) Credibility Findings
[38] Before I turn to the principles of self-defence and their application to this case, I have made the following credibility findings. These conclusions will be the basis for evaluating the Mr. Tsoraklidis’ claim of self-defence.
[39] The Crowns case largely rests on the evidence of the complainant. I have also reviewed the various surveillance videos.
[40] I did not find Mr. Tsoraklidis to be a credible witness. I further had concerns with the reliability of his evidence. I found the defendant’s evidence in relation to material facts, specifically that Mr. Ball pulled out a boxcutter and threatened him to be untrue. I largely rejected the defendant’s version of events.
[41] There were multiple instances where Mr. Tsoraklidis’ evidence was inconsistent with other evidence in this case. Specifically, the defendant’s testimony was undermined by both the video surveillance footage and the evidence of Rohan Thota, an Esso gas station attendant. These inconsistencies undermined this Court’s confidence in the reliability of Mr. Tsoraklidis’ evidence. I note the following:
(i) The defendant testified that prior to walking away from The Kitchen Table he had no interaction with the complainant. He had knocked on the window, but he did not receive the desired response, which was for Mr. Ball to let him into the store to use the ATM. He says he left after 30 seconds. He denied using a homophobic slur. The video evidence clearly shows Mr. Tsoraklidis speaking to the complainant as he is stepping away from the entrance. [6] The video footage in question is brief running ten seconds. Although there is no audio, the video corroborates the complainant’s version of what occurred at the store entrance - that there was a verbal exchange between the pair.
(ii) Mr. Tsoraklidis testified that he observed the complainant outside of the grocery store tending to flowers prior to going to the gas station. A second video taken from a surveillance camera facing west near the entrance of The Kitchen Table shows the defendant in front of the store and walking past at 1:57 a.m. – a few minutes before the incident. [7] Mr. Ball is not outside.
(iii) Rohan Thota testified that the defendant attended at the Esso gas station twice. Once when he attempted to use the ATM and about 15 to 20 minutes later when he returned. [8] However, according to Mr. Tsoraklidis after he left the scene of the incident, he walked along Davenport Rd. to Yonge St. He did not make any stops. That is incorrect.
[42] In addition to these inconsistencies, I further found Mr. Tsoraklidis to be an evasive witness. When asked why he needed to withdraw cash that night, given the obvious persistence of his efforts, he gave confusing responses. First saying he needed it to go to a bar, but then saying that was just an example, before remarking that it was his own personal business. [9] He further mentioned needing cash for “moving around expenses” or hypothetically to go to a strip club, but that no-one needs to know what he does in his spare time.
[43] The reason he required funds at that time of the night is not a particularly relevant issue at trial, but it was obvious given the shifting nature of his responses to a straightforward question that he was being purposely evasive. It impacted my assessment of his credibility and truthfulness.
[44] In another instance, it was put to him that the complainant was at one point directly in front of him at the store entrance or within his eyesight. He disagreed, saying he may have been looking at the flyer on the front door or trees. The video clearly shows otherwise and further reveals a verbal interaction between the parties. A non-sensical response on a point in the evidence easily confirmed by the video surveillance footage.
[45] I also found Mr. Tsoraklidis downplayed certain aspects of his evidence in an attempt to recast it in more favourable terms. For example, when asked if he had yelled or shouted at the complainant to get his attention while standing outside the store, he denied doing so, but he said he used a higher pitched voice, which he explained was loud. In other words, he yelled.
[46] In another instance, he said he knocked once while at the window. He previously testified he had knocked twice. Both are unlikely. I accepted Mr. Ball’s evidence that that the defendant “repetitively” knocked at the window for a few minutes. This makes sense in this context. Clearly accessing an ATM was important to Mr. Tsoraklidis. He attended at both The Esso gas station and The Kitchen Table for that sole purpose. He returned to the Esso a second time, but it was closed. Mr. Ball was sufficiently concerned by the defendant’s persistence that he thought there may have been a medical emergency.
[47] In marked contrast, Jason Ball gave compelling, thorough, and careful evidence.
[48] I was struck by the complainant’s level of recollection and the detail in his evidence. When asked to describe his injuries he testified to the following:
“Burns to my face, my head, my ears, my chin, my chest, and as a result of rinsing in the kitchen basin, my elbows, my forearms, my wrists, the palms of my hands, the backs of my hands, my fingers, my chest and parts of my stomach were all burned caused by the runoff of the pepper spray as the water dripped down my shirt, down my sleeves, down my collar, into my elbows and down my forearms.”
[49] When testifying about the incident, although he did not see the pepper spray cannister, he carefully described the direction of the spray using a clock as a reference. His ability to recollect details about the incident and about the moments before the alleged assault amplified the credibility of his evidence.
[50] In another instance, when describing his tasks that night, including counting Pepsi and Coke items, he explained, “It’s about six coolers, approximately eight shelves per cooler, double-sided.” This is clearly not a significant point in the trial, but again it reflects Mr. Ball’s level of detail in his evidence.
[51] He recalled that once he exited the grocery store, he was facing east and was almost immediately struck by pepper spray – in a matter of seven or ten seconds. This timeline which I readily accepted, does not accord with Mr. Tsoraklidis’ purported timeline. He first recounted that he was confronted by Mr. Ball, and that he was threatened. That the complainant had a boxcutter in his pocket which he observed being pulled out. In response, Mr. Tsoraklidis reached under his sweater and into his pants where this mace was attached to a cord, pulled out the cannister and deployed the spray. Clearly actions that would have taken longer than 10 seconds even with a margin of error.
[52] I have concluded that the defendant used the pepper spray as an offensive weapon and clearly deployed the spray immediately or in the short moments after the complainant exited the grocery store. It is obvious that Mr. Tsoraklidis was angry. He had been persistently knocking on the store window. Mr. Ball at first ignored him. Then waved him away with his hand, and then further gestured the store was closed. Despite this, the defendant continued, according to Mr. Ball, to keep “tapping” and “banging” on the glass. There was clearly an urgency is accessing an ATM given the level of persistence and his multiple attempts. I accept the complainant’s evidence that Mr. Tsoraklidis directed a homophobic slur at him. It was clearly directed out of anger.
[53] I further believed Mr. Ball’s denial when he said he never pulled out a boxcutter and directed it at the defendant. I accepted his evidence that he did not have one in his possession upon exiting the store, that he normally didn’t use the tool while at work after hours.
[54] I concluded the threat was contrived by Mr. Tsoraklidis and untrue. It is not believable given my credibility assessments in this case that Mr. Ball uttered, “I’m going to cut you up in little fucking pieces and I’ll throw you somewhere nobody could find you.” Mr. Ball’s initial intention was to ignore the defendant. He was clearly focused on his inventory tasks in the store. He only attended at the store entrance in part because of a concern there was a medical emergency. The fact he uttered, what’s your problem, after being called a faggot does not alter my conclusion.
[55] For Mr. Ball to pull out a boxcutter and explicitly threaten the defendant constitutes a very significant escalation in the level of conflict. The context of the interaction between the parties, although strained, just doesn’t support the defendant’s version of events. I concluded that Mr. Tsoraklidis’ claim that he was threatened with a boxcutter to be wholly fabricated.
[56] I further note, Mr. Ball gave frank evidence, readily conceding he used an aggressive tone with the defendant during their initial verbal interaction. PC Patterson described the complainant as being angry when he spoke to him after the incident. He further described him as being in disbelief by what had occurred. The fact that Mr. Ball was angry after being sprayed with a noxious substance is a reasonable and valid response in the circumstances.
D. Defence Submissions on Credibility
(i) Observation of the A-Frame Signage
[57] The defence points to several areas in the complainant’s evidence, that should cause this Court concern. The impact of which should give rise to a reasonable doubt. I will address the most significant defence arguments.
[58] Mr. Raftery argues that Mr. Ball’s evidence in relation to the outdoor A-frame sign was contradictory. The complainant saying at one point he could see the sign had been knocked down while inside the store, at another point testifying he could not see the sign until he exited the store.
[59] Mr. Ball was asked to explain the discrepancy in re-examination. He acknowledged the inconsistency and stated he could not remember if he saw the sign from indoors or not. Although not a minor inconsistency because the complainant testified it was the main reason he left the store, I accepted his explanation that he could not exactly remember. Overall, when I considered the sum of his testimony, even with this notable exception, I concluded that the complainant had a strong detailed recollection of events, especially as they related to material facts in this case.
(ii) Video Evidence
[60] Mr. Raftery points to the surveillance video which shows Mr. Ball follow the defendant. His pace is quick. The parties then move out of sight of the camera. The complainant conceded he used an aggressive tone with Mr. Tsoraklidis. The defence argues that Mr. Ball, who had just been subject to a slur and had his work tasks interrupted was angry, that he followed the defendant. Although not explicitly argued, it follows that this video evidence corroborates the defendant’s version of events - that he was being followed and felt threatened. He therefore acted in a reasonable manner given the context.
[61] That is a compelling argument, but the video evidence also shows for a brief moment, the complainant sticking his head out the door first and further holding onto the door with his right hand. This is not indicative of someone who is actively pursuing another. There is a pause. I further accepted Mr. Ball’s evidence that he was not pursuing Mr. Tsoraklidis but pursuing his store sign. He testified that once he opened the door, he had a clearer view of the landing area outside the store front, and he could see the store sign was not there.
[62] The video evidence viewed in this context does not substantially corroborate the defence position.
E. Analysis – Self-Defence
[63] Given my conclusion there is an air of reality to Mr. Tsoraklidis’ claim of self-defence, the onus is on the Crown to prove beyond a reasonable doubt that the defence of person as outlined in s. 34 is not available to the defendant.
[64] Section 34 incorporates both a subjective and objective test. The accused person’s belief lies at the core of the defence but the belief in the need to resort to force must be based on reasonable grounds and the justifiable amount of force must be reasonable.
[65] The Court of Appeal in R. v. Bengy, 2015 ONCA 397, outlined the three elements to self-defence (i) the accused must have an objectively reasonable belief that force is being used or that the threat of force is being made against him, (ii) the accused's subjective purpose in responding to the perceived threat must be to protect himself and (iii) the act committed by the accused to protect himself must be objectively reasonable in the circumstances.
[66] The Crown is only required to prove beyond a reasonable doubt that at least one of the elements of self-defence is not present for this Court to reject the defence. [10]
[67] Given my finding of fact that Mr. Ball neither possessed a boxcutter nor threatened the defendant, the claim of self-defence must fail. I will however briefly address the application of the legal principles of self-defence in this case.
(i) Reasonableness of Force
[68] I am required to assess whether the defendant believed, and whether he had reasonable grounds to believe, that Mr. Ball was using force or threatening to use force against him.
[69] At the outset, I am not satisfied that Mr. Tsoraklidis subjectively felt threatened in the circumstances. As noted, I concluded the defendant deployed the pepper spray as an offensive act. That he lashed out in anger and that he intended to harm Mr. Ball. The defence is therefore not available.
[70] Even if I were to accept that Mr. Tsoraklidis’ past personal circumstances, where he was a victim of a violent crime, had caused him to be particularly fearful, such that he perceived Mr. Ball to be an active threat, I still must evaluate whether that belief was reasonably based. [11]
[71] At its highest based on my findings of fact, the potential threat manifested itself in the complainant following in the direction of Mr. Tsoraklidis. His pace was quick, which I accept would amplify the defendant’s level of concern. Moments before the parties had a verbal exchange. The complainant’s tone was aggressive.
[72] These constellation of factors are hardly sufficient to justify the use of force in this case, which I deemed, given the nature of the burn injuries, to be significant. Mr. Tsoraklidis response was highly disproportionate to the perceived threat if there was one. In short, his resort to deploying the pepper spray was unreasonable in the circumstances.
[73] The second element of self-defence considers the accused personal purpose in committing the act that constitutes the offences before this Court. Given my conclusion that there was no defensive purpose underlying the defendant’s actions, the rationale underlying the application of self-defence cannot apply. Indeed, I concluded Mr. Tsoraklidis actions were motivated by personal animus.
[74] The last factor relates to whether the accused’s conduct was reasonable in the circumstances. I am required to consider the factors set out in s. 34(2) (a) to (h).
[75] The use of force was not imminent. There were many opportunities to mitigate the threat if Mr. Tsoraklidis’ genuinely perceived an impending violent conflict. Mr. Tsoraklidis could have walked away from the scene but chose not to. His evidence on this point was hardly compelling, saying if he ran from the scene he would have ended up on the street and a “car could have just hit me.” It was a seemingly sarcastic response. Given the time of night, traffic would have been light, but certainly that was not his only option to escape from the situation.
[76] I further note the parties were approximately the same size, although Mr. Tsoraklidis is younger. The parties were unknown to each other, and the defendant played an instigating role in this incident. His decision to deploy pepper spray was unreasonable.
F. Conclusion
[77] The ultimate question in this type of analysis is not simply whether the complainant was credible, but whether the allegations are proved beyond a reasonable doubt. [12]
[78] I have rejected the defendant’s testimony about material facts in this case. Key portions of his evidence were contradicted by evidence I do accept. I find his testimony does not leave a doubt either alone or in combination with any other evidence.
[79] To be clear, the Crown has proven beyond a reasonable doubt that at least one of the conditions for lawful self-defence was not present when the defendant deployed pepper sprayed against Mr. Ball.
[80] A conviction is to be entered on both counts before this Court.
H.S. Amarshi J.
[1] R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152, at para. 11 [2] As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial. [3] A substance is noxious if, in light of all the circumstances attendant on its administration, it is capable of effecting a consequence defined in the section. Relevant circumstances include its inherent characteristics, the quantity administered and the manner in which it is administered - R v Burkholder (1977), 1977 ALTASCAD 8, 2 A.R. 119. [4] R. v. Cinous, 2002 SCC 29, at para. 54. [5] Cinous, ibid at para. 53. See also R. v. Alas, 2021 ONCA 224. [6] Exhibit 1 (a) entitled “Surveillance: 155 Dupont St – east view.” [7] Exhibit 1 (b) entitled “Surveillance: 155 Dupont St – west view.” [8] It is clear based on the timestamps from the surveillance videos from both the Esso gas station and The Kitchen Table that Mr. Tsoraklidis walked directly to the grocery store after leaving the gas station. [9] I note the period in question was at the outset of the COVID pandemic and it is unlikely a bar or strip club would have been open. [10] See R. v. Filli, 2017 ONSC 2883. [11] The question is not what the accused thought in the circumstances was reasonable based on their characteristics and experiences but rather what a reasonable person with those relevant characteristics and experiences would perceive – R. v. Khill, 2021 SCC 37. [12] R. v. Martin, 2017 ONCA 322, at para. 18.