Court File and Parties

Ontario Court of Justice

Date: October 27, 2025

Court File No.: Toronto 4811-998-25-48108034-00

Between:

His Majesty the King

— and —

Joel Mbah

Before: Justice Christine Mainville

Heard on: September 25-26 and October 2, 2025

Reasons for Judgment released on: October 27, 2025

Counsel

Geocelyne Meyers — counsel for the Crown

Emily Dixon — counsel for the accused

Reasons for Judgment

Mainville J.:

Facts

[1] The accused Mr. Mbah sprayed a substance from an aerosol can onto a person who resided in the same building as his mother, and who was known to him. The spray was believed to be some sort of bug spray. It clouded around the complainant, Ms. Long, and got into her eyes. This occurred outdoors on a neighbourhood street, where Ms. Long was engaged in conversation with another person from the neighbourhood, Mr. Recchia. Mr. Recchia was accordingly a witness to these events.

[2] As a result of this incident, Mr. Mbah was charged not with assault, but with administering a noxious substance with intent to aggrieve or annoy. He was also charged with two counts of breaching the peace, as it relates to a peace bond and probation order he was bound by at the time.

[3] The defence concedes that Mr. Mbah directed the spray at Ms. Long and thereby assaulted her. Accordingly, it also concedes that he breached the peace, contrary to the court-imposed terms he was bound by. However, it argues that the facts do not make out the offence of administering a noxious substance, which is a specific intent offence aimed at a particular type of conduct.

[4] The defence argues that both the actus reus and mens rea of this offence have not been proven beyond a reasonable doubt. The Crown argues that it has discharged its burden on this count as well.

The Principles to be Applied

[5] Several admissions were made over the course of this trial, including that Mr. Mbah committed the offence of breaching a court order to keep the peace.

[6] On the remaining offence, however, Mr. Mbah is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt.

[7] Reasonable doubt is based on reason and common sense. It is logically connected to the evidence or lack of evidence. It is not enough for me to believe that Mr. Mbah is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[8] Many facts are not in dispute, including Mr. Mbah's identity as the person who sprayed Ms. Long. It is also conceded that he did target her. The case largely turns on how to interpret and apply the elements of the offence of administering a noxious substance to the facts of this case.

[9] There are, however, some areas of factual dispute that turn on the credibility and reliability of the two witnesses who were called to testify: the complainant Ms. Long and the third-party witness, Mr. Recchia. The accused did not testify.

[10] Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness' testimony and involves a consideration of the person's ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.

[11] Testimony can be assessed through a non-exhaustive list of factors including the plausibility of the evidence; the presence of independent supporting or contradicting evidence; the internal and external consistency of the evidence; the witness' apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, the witness' demeanour while testifying.

[12] The defence acknowledges that Mr. Recchia's testimony was credible and reliable. It argues however that Ms. Long's evidence was not so, in particular because of her animus towards the accused and his family.

Findings of Fact

[13] I agree with the defence that I must exercise caution before accepting aspects of Ms. Long's testimony that are not confirmed or corroborated by Mr. Recchia's evidence. The Crown acknowledges that there were issues with her testimony.

[14] There is a history between the parties that informs this caution – one that Ms. Long was not forthright about in her evidence.

[15] Indeed, she portrayed herself as well-intentioned and looking out for Mr. Mbah's best interests, and minimized the level of past interactions between herself and the accused, including a prior conflict. It became apparent over the course of cross-examination that she had significant animus towards the accused, his brother and his mother, and that by the time of this incident, she wanted Mr. Mbah in particular to move away from the building where she resides. Ms. Long very clearly saw him as a nuisance and while she did not lie about the entire incident, she had a motive to exaggerate its circumstances.

[16] In addition, Ms. Long was often not responsive to the questions asked. She repeatedly sought to justify her conduct, cast blame on others, and deflect. For instance, Ms. Long sought to distance herself from a neighbourhood rumour and a name used in the neighbourhood to refer to the accused. But I find that she was not candid with the court in this regard, and that she very much held the same views.

[17] More significantly, when asked whether she had poured water on Mr. Mbah's brother and another individual who were smoking outside underneath her window, she suggested that the AC units should be checked, before eventually admitting that she did chuck water out her window. This admission completely contradicts her assertion to the police – who were called at the time in response to this incident – that she had done no such thing. Not only was she not forthright with the police, but she was also not forthright with the court about this incident.

[18] I certainly cannot say that Ms. Long testified in a fair and balanced manner. She was not candid in her answers or trying as best she could to assist the court in arriving at the truth. These issues cause me to approach her evidence with great caution.

[19] This informs my analysis of whether the Crown has proven all essential elements of the offence charged.

[20] Still, as indicated, there is no dispute that Mr. Mbah approached Ms. Long on the street and sprayed her with an aerosol can.

[21] Ms. Long described how the accused reached around her and pointed the can directly in her face as he sprayed it, the spray landing in her right eye.

[22] I prefer Mr. Recchia's evidence on this point, who instead described the accused as holding the can upside down at his hip level. The spray went towards Ms. Long's upper body. He explained that the spray did "cloud up in the air", "dispersing like a cloud" and going all over Ms. Long, including on her face. He said it was "shocking" how quickly it went from the hip to surround Ms. Long's body.

[23] More specifically, Mr. Recchia indicated that it went "onto [Ms. Long] and the surrounding area, sorta near her head, but like I said, it clouded up". The man "pointed the can in her area and it basically went from head to toe". It went all over her, including her face, though he did not point the can in her face. Mr. Recchia did clarify that from his perspective, it was deliberately sprayed to Ms. Long from the hip.

[24] He explained that this happened as the accused came up from behind Ms. Long on the sidewalk, and as soon as he was parallel with her, he dispersed the can. This was in close proximity to her though Mr. Recchia did not provide a specific distance, other than indicating that they were both on the sidewalk. He agreed that the accused was not behind Ms. Long, but parallel to her when this happened.

[25] Mr. Recchia indicated that it looked intentional though it happened so fast, and the accused just continued to walk and indeed continued to spray. There was little to no reaction from the accused.

[26] Ms. Long also could not attribute any words or particular demeanour to the accused, other than perhaps the word bug. She indicated that he was agitated but she didn't make out what he was saying.

[27] I accept Mr. Recchia's characterization of what happened. I do not accept Ms. Long's evidence that Mr. Mbah aimed the can at her face or her glasses from behind.

[28] Mr. Recchia described Ms. Long as being "very frantic" right after this happened. He said that she had aerosol in her face, "so there was immediate discourse" and she proclaimed that this was a continuing thing with the accused.

[29] Ms. Long indicated that the spray went on her glasses and into her right eye. She did not think anything got in her left eye. She rinsed her eyes but did not suffer any injuries or consequences. She wasn't sure what the substance was and worried it would cause damage to her eyeglasses, so she rinsed them out too. She was scared and upset and took a breather in a nearby store. She asked Mr. Recchia to speak to the police about the incident. She explained being more rattled than injured.

Administering a Noxious Substance with Intent to Aggrieve or Annoy

[30] Mr. Mbah is charged with administering a noxious substance with intent to aggrieve or annoy under s. 245(1)(b) of the Criminal Code.

[31] The defence argues that the act of spraying the aerosol can towards Ms. Long does not constitute "administering" the substance. It further argues that the Crown has not discharged its burden of proving that what was sprayed was a noxious substance. Finally, it argues that the Crown has not proved the specific intent to aggrieve or annoy.

[32] I turn to each of these essential elements of the offence charged.

"Administering"

[33] The term "administering" is not defined in the Criminal Code. In the face of sparse case law on the point, the Crown argues that I should accept the definition adopted by the Alberta Court of Appeal in R. v. Clark, 2008 ABCA 271.

[34] That case is certainly most akin to the facts at issue here, where a substance was applied to a person's body. In most cases, the impugned substance was "administered" to a person through a syringe, or a person was otherwise made to ingest the substance. Those cases more straightforwardly constitute "administering" a substance.

[35] There are cases where the accused was too removed from the ultimate act to make out this element of the offence. In those cases, the accused did not directly "administer" the substance. In one, a doctor provided a prescription for a narcotic; in another, the accused provided a syringe and drugs to another who then administered it themselves. See, for instance, R. v. Giles, 2013 ONSC 822; R. v. Verma and R. v. Tan (1984). This is different from the current situation. Those cases are also distinguishable as they related to the definition of the term "administer" in the context of the offence of trafficking under the Narcotics Control Act, or some other offence such as assisting suicide. These involve a different legal framework.

[36] I do not find these cases to be of great assistance in interpreting the term "administering" in the context of the present case, as the courts were focused on whether there was a direct action or "active involvement" of the accused in causing the victim to take the substance. It is in this context, for instance, that the Court in Tan spoke of the need for a narcotic to "enter the recipient's system parenterally or otherwise" for it to be administered: cited in Giles, at para. 8.

[37] We are not here dealing with a narcotic that is typically ingested in some way or another, or with a removed action on the part of the accused. In the present case, there was no intervening person or action as between the accused and complainant.

[38] In Clark, the accused had poured motor oil onto the complainant's face while she was lying on her back. He was charged under the same Criminal Code provision as here. In that context, the Court of Appeal relied on the dictionary definition of the term "administer" as including "give, apply": para. 7. It rejected the accused's argument that to be administered, the accused must intend for the substance to be "taken internally or perhaps absorbed through the skin": paras. 9-11.

[39] Leaving aside the issue of intent that must be established (which, as the court pointed out, is the intent to annoy or aggrieve, not to have the substance be taken internally), the Court found that the term "administer" is "broad enough to include a harmful substance being brought into contact with a person's skin". Pouring motor oil onto the complainant's face was found to be "administering" the oil: para. 13.

[40] Of course, the trial judge had also found that the substance was "noxious", stating that "a substance intended as a lubricant for automobiles or machines and certainly not intended to be applied to an individual's person is a noxious substance when thrown in the face deliberately": para. 5. This was the case even though it was pointed out that motor oil will not infrequently make contact with mechanics' skin in the ordinary course of their work.

[41] Bug spray is different to some extent, depending on the type of spray. But I address below whether the spray here constituted a "noxious substance". For the purpose of determining whether it was "administered" by the accused, I accept that there is no need for it to enter the body. It suffices that it be "applied" onto another person, and that it come in contact with their skin. The dictionary definition of "administer" is indeed broad, and the Alberta Court of Appeal's reasons on this point are persuasive.

[42] In R. v. Cogswell, 2021 CM 2017, the Court Martial also considered the dictionary definition of "administer" which it noted as including – based on the context of the case before it – "dispensing" or "distributing": see para. 223.

[43] By directing the aerosol can at Ms. Long and spraying it, the accused clearly did "administer" the spray onto her. Contrary to the defence's submission, I do not accept that the Crown had to prove that the spray was directed at and got into Ms. Long's eye for this element to be made out. I do not believe the location of the body where the substance is applied is of much import, nor, as indicated above, do I accept that it must penetrate the skin or enter the body. The content of the aerosol can in this case was sprayed onto her skin, and that suffices to meet the broad definition of "administering" under s. 245 of the Code.

[44] Before considering whether the substance administered here was "noxious", I first consider the accused's intent given the fact that the analysis of what is "noxious" under s. 245(1) accounts for all the circumstances relating to the manner in which the substance was administered.

Intent to Aggrieve or Annoy

[45] As set out in R. v. Burkholder (1977), 1977 ALTASCAD 8, at para. 28: "the nature of the mens rea required to support a conviction is found in the intent that accompanies the act of administration of the noxious substance, and requires that the act of administration be accompanied by the intent to cause the particular harm described in the section." It does not encompass recklessness: para. 31. The intent must specifically be to annoy or aggrieve: para. 31.

[46] Certainly, "the natural consequences of the act might, if nothing else was proved, be said to show the intent with which it was done": R. v. Steane, 32 Cr. App. R. 61, at pp. 65-66, cited in Burkholder, at para. 33. The requisite intent can also be inferred from the consequence being suffered, or if it is established that the amount administered would have caused this consequence in the normal course of events, even if the consequence did not follow: Burkholder, at para. 41. See also Cogswell, at paras. 228-33.

[47] The case of Cogswell, at para. 232, also references the dictionary definitions of "aggrieve" (distress) and "annoy" (make slightly angry), which are also not defined in the Code.

[48] I certainly accept that Ms. Long was annoyed and aggrieved. Unexpectedly spraying a substance at a person, in circumstances such as the ones that existed here, would also be expected to cause this consequence in the normal course of events.

[49] Moreover, based on the history between Mr. Mbah and Ms. Long, and the fact that he targeted her with the spray, I accept that he sprayed her with the intent at minimum to annoy her.

[50] Though he continued to spray the aerosol can up along the roadway and there was nothing clearly said to support this intent, the defence admission that he directed the spray at Ms. Long, in conjunction with their history, suffices to infer the specific intent to annoy or aggrieve. Mr. Mbah did not have any expression or reaction and simply went on his way, but as pointed out by the Crown, that fact is also indicative of a purposeful intent considering that there were no words to suggest the spraying was an accident or to offer any other explanation, despite the fact that Ms. Long immediately reacted to the spray.

[51] This element of the offence is therefore met.

Noxious Substance

[52] The "noxious thing" in this case is particularized in the charge as an "unknown spray". The Crown takes the position that although the spray was likely bug spray, this is of no matter.

[53] The defence argues that spraying bug spray from the hip toward someone does not meet the test for administering a noxious substance. It argues that in the context of not knowing what the substance in fact was, the effects described are insufficient to prove that it was noxious.

[54] Whether a substance is noxious will depend on the circumstances of its administration. A non-toxic substance can be noxious, depending on the case.

[55] For instance, the court in Burkholder, at para. 25, found that water or aspirin could be "noxious" in certain circumstances, such as where water is injected into a person's body or an excessive amount of aspirin is administered to a person.

[56] Indeed, in Burkholder, at para. 24, the Alberta Court of Appeal noted the dictionary definition of "noxious" as being "injurious, hurtful, harmful, unwholesome" or "not beneficial to mortals". But it held that whether a substance is noxious will be determined "in light of all the circumstances attendant on its administration". Relevant circumstances include its inherent characteristics, the quantity administered and the manner in which it is administered. The court will consider if, based on those circumstances, "it is capable of effecting a consequence defined in the section", that is, "aggrieve or annoy": para. 25.

[57] This definition was adopted in Clark, at paras. 8 and 14. It reiterated that "context is all-important in determining whether a substance is noxious".

[58] In the case of Cogswell, a member of the Canadian Armed Forces was found to have administered a noxious substance by putting cannabis in cupcakes ingested by other members prior to a fire exercise. These members did not know they were ingesting marijuana and all experienced after-effects of ingesting the substance.

[59] Although many use cannabis recreationally and will consider its effects as pleasant, the Court Martial concluded that in the circumstances that existed in that case, where the members displayed symptoms including "the impairment of cognitive abilities, lethargy and drowsiness which were incompatible with their tasks that day" and based on expert evidence regarding the effects of cannabis, the substance was noxious: see para. 219-222.

[60] The Court pointed to a dictionary definition of "noxious" as being "harmful, poisonous or very unpleasant": para. 214. It otherwise endorsed the holding in Burkholder regarding the relevance of context: paras. 215-16. It focused in particular on whether the substance, "in light of all of the circumstances attendant upon its administration", "is capable of effecting, or in the normal course of events will effect, a consequence defined" at paragraph 245(1)(b), that is, aggrieve or annoy the person: paras. 215-16.

[61] The Crown submits that even though bug spray may be administered to a person in a non-toxic way, the manner in which it was administered here made it – at minimum – "very unpleasant" and was "capable of" aggrieving or annoying a person.

[62] I do not accept that this suffices to render a substance "noxious" for the purpose of s. 245 of the Code. After all, water sprayed onto a person – in the manner the accused did here – could also be "very unpleasant" and "aggrieve or annoy" a person. Yet that is not akin to the example given in Burkholder of injecting water into a person's body.

[63] The starting point of the analysis in Burkholder was the dictionary definition of "noxious" as being "injurious, hurtful, harmful, unwholesome". While a substance does not need to possess those inherent characteristics, the manner in which it is used must still amount to being "noxious". That is the point of factoring in the surrounding context. It cannot merely be that the substance is capable of "aggrieving" or "annoying", as any substance can do that. The manner of use, if not the substance itself, must be "noxious".

[64] While the definition of "noxious" can include something that is "very unpleasant", the prevalent meaning of the word relates to it being "physically harmful or destructive to living beings" or "unwholesome" in the sense of being "harmful especially to health": Merriam-Webster dictionary, online, 2025, www.merriam-webster.com/dictionary/noxious.

[65] Based on the Cambridge dictionary, a noxious thing is something, "especially a gas or other substance" that is "poisonous or very harmful", or that is "harmful and unpleasant": Cambridge Academic Content Dictionary, Cambridge University Press, 2025, www.dictionary.cambridge.org/dictionary/english/noxious [emphasis added]. See also: www.dictionary.com/browse/noxious ("harmful or injurious to health or physical well-being"); Collins COBUILD Advanced Learner's Dictionary, HarperCollins Publishers, www.collinsdictionary.com/dictionary/english/noxious ("poisonous or very harmful" or "extremely unpleasant", also referencing Penguin Random House LLC, which refers to "harmful or injurious to health or physical well-being").

[66] I also note the seemingly clearer terminology used in the French version of the Code, which refers to "un poison ou une autre substance destructive ou délétère" – that is, "a poison or other destructive or deleterious substance" [translation mine]. "Délétère" can also be translated in English as "injurious" or "harmful". In French, this means toxic, harmful, or detrimental to health or life.

[67] The above considerations are sufficient to persuade me that the quality of "noxiousness" under section 245(1)(b) requires more than mere unpleasantness as submitted by the Crown. However, if there were any residual ambiguity in the meaning of this term as applied to these facts, I would find that the principle of strict construction in the criminal law would resolve the interpretative exercise in favour of the defence: R. v. Hasselwander; R. v. McIntosh.

[68] In the circumstances of the present case, therefore, I am unable to find that the substance was noxious.

[69] First, I cannot make clear findings on the "inherent characteristics" of the spray given that it is not known what the substance in fact was. The can, which was not located, was described as a very large one, like Raid bug spray. Mr. Recchia believed it could be a bee spray, but it is unclear whether it was a repellent spray for topical use to be applied to skin, or a bug killer spray not intended for personal use. Although Ms. Long described a bug spray-like smell, Mr. Recchia did not describe any odour.

[70] I must instead draw inferences based on the description of the spray and in particular its effects or lack thereof on Ms. Long. Leaving aside the emotional impact of being unexpectedly assaulted, the physical effect of the spray was minimal if non-existent.

[71] Indeed, the impact was that Ms. Long was rattled and became frantic. She was upset. She was concerned about the spray damaging her eyeglasses, but this concern does not appear to have materialized. She rinsed her glasses and her eye – not because it was burning – but because she didn't know what the substance was. Indeed, I understand the evidence to be that Ms. Long rinsed her eye as a precautionary measure, once she got home. She did not say that the spray impacted her vision prior to rinsing, even temporarily or partially. She first took a breather in a nearby store.

[72] In fact, Ms. Long did not describe any sting or burning sensation to her eye. Nor did she attribute any redness or irritation to the spray. She indicated that her eye was a little bit red but that that could have just been from rinsing it out.

[73] It is also notable that although Mr. Recchia was in conversation facing Ms. Long, he did not experience any contact with the spray or its effects at all.

[74] As for the manner in which the spray was administered, it was sprayed from the hip level, next to Ms. Long. It dispersed in a cloud-like manner around her. It certainly was aimed in her direction, though not in her face. Ms. Long was certainly annoyed if not aggrieved by being sprayed, and I accept that it was intended to annoy her.

[75] But I also cannot say exactly how much was administered, though it was enough for the spray to cloud up around Ms. Long. Still, the gesture was brief, and the accused proceeded on his way.

[76] Based on all these circumstances, I cannot find that the substance was "injurious, hurtful, harmful, unwholesome", or otherwise sufficient to meet the definition of noxious.

[77] This conclusion might have been different if the spray had been administered directly into Ms. Long's eye, in particular if she had felt notable effects from it. But I am unable to find that this was the case. The spray dispersed as a cloud around her, and that is how some landed on her face. She did not appear to suffer any direct effects from the spray itself.

[78] This element of the offence has thus not been proven beyond a reasonable doubt.

[79] I was not asked to consider whether the offence of assault is a lesser included offence to the one charged. An acquittal will therefore follow on count one.

Breaches of the Peace

[80] As indicated, these are conceded by the defence. Given that the two counts relate to an identical term of keeping the peace, the defence asks that one be stayed pursuant to the principles set out in Kienapple v. R.. The Crown takes no issue with this request.

Conclusion

[81] An acquittal will therefore be entered on count 2. Findings of guilt will be entered on counts 3 and 4, but count 4 (breach of probation) will be stayed pursuant to Kienapple.

Released: October 27, 2025

Signed: Justice C. Mainville