R. v. Toor, 2019 BCPC 282

Citation: R. v. Toor 2019 BCPC 282 Date: 20191115 File No: 253994 Registry: (Vancouver) IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. SURJIT SINGH TOOR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Crown: K. Gallo Counsel for the Defendant: B. Anderson Place of Hearing: Vancouver , B.C. Date of Hearing: November 7, 2019 Date of Judgment: November 15, 2019 INTRODUCTION [ 1 ] Surjit Singh Toor is charged with an assault of Leah Osachuk, a transit operator, contrary to s. 266 of the Criminal Code of Canada .

The alleged assault occurred on October 19, 2018, aboard a transit bus which was on a route travelling from the Vancouver Waterfront to South Vancouver. The witnesses called by the Crown were Leah Osachuk and two Transit Police Officers, Constable Carlos Dasilva and Constable Harpreet Dahl. The Crown’s case is supplemented by video evidence taken from inside the bus. Mr. Toor

elected not to testify at trial, as is his right. THE ISSUES [ 2 ] The issues I will deal with are as follows: 1. Identification of Mr. Toor 2. Was force applied to another person? 3. Was the application of force intentional? 4. Was force applied without consent? 5. If an assault occurred, was it so trivial or minor that a Criminal Code penalty should not be imposed? THE EVIDENCE OF LEAH OSACHUK [ 3 ] On October 19, 2018, Leah Osachuk was the transit operator for a transit bus that was on a route from the Vancouver Waterfront to South Vancouver.

At the bus stop at Main Street and Hastings in Vancouver, a man whom I will refer to as the “suspect” boarded the bus. Ms. Osachuk described the suspect as being unstable on his feet and needing the help of other persons to get onto the bus. Ms. Osachuk noted that the suspect had a hospital bracelet on and appeared either intoxicated or sedated. Later in her testimony, Ms., Osachuk described the suspect as being “wobbly” and “loosey goosey.” [ 4 ] The suspect stopped beside Ms. Osachuk, who was seated in the driver’s seat. He was trying to communicate with Ms.

Osachuk but she recalls that his vocabulary was unclear. She was able to determine that the suspect wanted to go to the area of Victoria Drive and 49 th Avenue in Vancouver. She told him that the bus would go to that area. The suspect then placed his hand onto Ms. Osachuk’s right shoulder. Ms. Osachuk said to him: “Don’t touch me. I am aware of where you are going. Have a seat.” The suspect said nothing and went toward the rear of the bus. Through the rear-view mirror, Ms.

Osachuk was able to observe the suspect taking a seat on the bus. [ 5 ] The bus proceeded on its route and came to a stop near the intersection of Commercial Drive and Venables Street. The suspect then approached the front of the bus and again tried to communicate with Ms. Osachuk. Ms. Osachuk told him: “I am aware of where you want to get off. Just have a seat.” Ms. Osachuk said the suspect was standing just behind her at the time and she was looking at him through the rear-view mirror. Ms.

Osachuk said to him: “I’m aware you want to get off at Victoria and 49 th ” and “I will let you know when we get there.” [ 6 ] The suspect then leaned forward and placed his hand on Ms. Osachuk’s upper thigh. She said the hand was on her leg for two to three seconds. Ms. Osachuk yelled at the suspect: “Don’t touch me.” The suspect then returned to his seat. [ 7 ] Ms. Osachuk described the pressure of the contact with her leg as a “groping pressure” and compared it to a firm handshake. [ 8 ] During this time, Ms. Osachuk said the suspect was stable on his feet.

The bus was not moving when this incident occurred. [ 9 ] Ms. Osachuk continued to drive the bus but also called into a transit emergency line to speak to a supervisor. She reported the incident and advised that she would stop the bus at the Kingsway and Victoria Drive stop to wait for help. [ 10 ] Upon arriving at the stop, Ms. Osachuk advised the passengers that the bus was out of service. All the passengers left the bus except for the suspect. A transit supervisor arrived at the scene first, followed by officers from the Vancouver Police Department and then officers from the Transit Police. [ 11 ] Ms.

Osachuk said the suspect was escorted off the bus. She described him as being in his late 40’s or early 50’s, wearing a dark grey hoodie, dark pants, with a 5 o’clock shadow and wearing a white hospital bracelet. By “5 o’clock” shadow”, I understood Ms. Osachuk to be saying that the suspect had not shaved that day. VIDEO FOOTAGE [ 12 ] Video footage was shown of the incident. The video camera was mounted in such a way that it showed passengers entering the bus across from Ms. Osachuk. Only parts of Ms.

Osachuk could be seen in the video. [ 13 ] When the suspect boarded the bus, only one person was visible helping the suspect board. [ 14 ] While the suspect was first talking to Ms. Osachuk, he appeared to be somewhat unstable on his feet. In a later statement to the police, Ms. Osachuk described the suspect to be “like he was about to fall over.” [ 15 ] The video showed the suspect placing his hand on Mr. Osachuk’s right shoulder. [ 16 ] With respect to the second contact, the video evidence did not show the suspect actually touching Ms. Osachuk.

It does clearly show the suspect reaching out and down toward the area where Ms. Osachuk’s leg would have been. The video footage did not provide any indication that the suspect stumbled toward Ms. Osachuk. THE EVIDENCE OF CARLOS DASILVA [ 17 ] Constable Dasilva testified that he was dispatched to the area of Kingsway and Victoria Drive on October 19, 2018. Several Vancouver Police Department units were already on site, as well as transit security and the suspect. The suspect was in the Vancouver

Police paddy wagon and the Vancouver Police asked Constable Dasilva to take custody of the suspect as this was a Transit Police matter. Constable Dasilva escorted the man to his police car. Constable Dasilva said the suspect appeared intoxicated and he could smell alcohol on the man’s breath. The suspect was described as unsteady and swaying, and Constable Dasilva said he had to assist him to his police car. Constable Dasilva then made a request for a Punjabi speaking officer to attend. In due course, Constable Dahl arrived.

THE EVIDENCE OF CONSTABLE HARPREET DAHL [ 18 ] Constable Dahl said he was dispatched to the Kingsway and Victoria Drive bus stop on October 19, 2018 to deal with a Punjabi- speaking suspect. When he arrived, he took the suspect from Constable Dasilva’s car to his own vehicle and transported him to the Vancouver Police jail. Constable Dahl could smell alcohol coming from the suspect, who was described as being unsteady on his feet. Constable Dahl said that he had to hold the suspect to keep him from falling. The suspect identified himself to Constable Dahl as Surjit Toor. IDENTIFICATION OF MR. TOOR [ 19 ] Ms.

Osachuk did not specifically identify Mr. Toor as the man who allegedly assaulted her. However, she was clear that the suspect remained on the bus when she stopped it at Kingsway and Victoria Drive.

She also said that the suspect was taken off the bus and placed into police custody. [ 20 ] Constable Dasilva testified that he took the suspect from the Vancouver Police car into his car. [ 21 ] Constable Dahl testified that he took the suspect from Constable Dasilva’s car into his own car and that the person identified himself as Surjit Toor. [ 22 ] The video evidence did show the face of the suspect; however, identification by way of the video was difficult because Mr. Toor had a full beard when he appeared in court. [ 23 ] Both officers identified Mr.

Toor in court as the person arrested, but I am cognizant that an in-court identification is fraught with difficulties because the suspect is clearly identifiable as the person sitting beside defence counsel. [ 24 ] Nevertheless, there was continuity in that the suspect was taken off the bus and then passed from the Vancouver Police to Constable Dasilva and then to Constable Dahl. The suspect then identified himself to Constable Dahl as Surjit Toor. Based on this, I am satisfied that the person who is alleged to have twice contacted Ms. Osachuk was the accused, Mr. Toor.

ASSAULT UNDER THE CRIMINAL CODE [ 25 ] According to s. 265(1) (

a) of the Criminal Code , a person commits an assault when, without the consent of the other person, the first person applies force intentionally to the other person, whether directly or indirectly. The elements of the offence of assault are:

(1) The application of force to another person (in legal terms, the Actus Reus );

(2) The application is intentional (in legal terms, the Mens Rea ); and

(3) The other person did not consent to the application of force. WAS FORCE APPLIED TO ANOTHER PERSON? [ 26 ] The first contact between the parties was shown on the videotape. Mr. Toor clearly placed his hand onto Ms. Osachuk’s shoulder. [ 27 ] The second contact was alleged to be Mr. Toor placing his hand on Ms. Osachuk’s upper leg or thigh for some two to three seconds. In viewing the videotape evidence, the actual touch is not shown but Mr. Toor is seen bending over and reaching his hand downward toward where Ms. Osachuk’s right leg would be. I found Ms. Osachuk’s evidence in this regard credible.

Her immediate reaction was to tell Mr. Toor not to touch her. I conclude that Mr. Toor did in fact reach down to touch Ms. Osachuk’s leg. [ 28 ] In the decision R. v. Burden , [1984] BCJ No. 1259 , the Court of Appeal held that an assault occurred when the offender placed his hand on the thigh of the victim for a period of time between five and ten seconds. The Court said this was an intentional application of force to the victim’s person. [ 29 ] Ms. Osachuk testified that Mr. Toor placed his hand on her upper leg for two to three seconds. In R. v. Burden , the touching was between five to ten seconds.

I am not prepared to set a time limit for how long a person’s body must be touched to qualify as the physical element of an assault under the Criminal Code . In my view, the act of touching or contacting another person is still an application of force, however brief. [ 30 ] I conclude that Mr. Toor did touch or contact Ms. Osachuk’s shoulder and then her leg, and I am satisfied that each instance constituted an application of force upon Ms. Osachuk. WAS THE APPLICATION OF FORCE INTENTIONAL? [ 31 ] The first contact was to Ms. Osachuk’s shoulder. Ms. Osachuk described Mr.

Toor at the time as being somewhat unstable on his feet. In a statement to the police, Ms. Osachuk said of Mr. Toor that it was “like he was about to fall over.” The video evidence does not allow me to conclusively find that the contact with the shoulder was deliberate as opposed to accidental. I am also not able to rule out the possibility that this contact was caused by Mr. Toor’s instability while walking. Therefore, the Crown has failed to prove beyond a reasonable doubt that Mr. Toor intentionally placed his hand on Ms. Osachuk’s shoulder.

The contact with the shoulder was not an assault within the meaning of the Criminal Code .

[32] The second contact was to Ms. Osachuk’s upper leg or thigh. The video evidence shows Mr. Toor bending over and reachinghis arm out toward the area of Ms. Osachuk’s leg. There was no indication that Mr. Toor stumbled or that the contact was accidental.Ms. Osachuk’s evidence was clear that Mr. Toor touched her upper leg. I am satisfied that for whatever reason, Mr. Toor deliberatelyand intentionally reached out to touch Ms. Osachuk on her right upper leg or thigh. As such, the mental component of assault existed forthe second contact. WAS FORCE APPLIED WITHOUT CONSENT? [33] Ms.

Osachuk was clear in her evidence that she never consented to Mr. Toor touching her. I accept this evidence. Her immediateresponse after each contract was to tell Mr. Toor not to touch her and this demonstrates her state of mind of not consenting to the contact.Mr. Toor was also aware of the lack of consent given that Ms. Osachuk informed him twice not to touch him. IF AN ASSAULT OCCURRED, WAS IT SO TRIVIAL OR MINOR THAT A CRIMINAL CODE PENALTY SHOULD NOTBE IMPOSED? [34] Mr. Toor submits that any contact between he and Ms. Osachuk was so minor and trivial that a Criminal Code penalty shouldnot be imposed. Mr.

Toor invites me to apply the doctrine of de minimis non curat lex to this case. [35] In the decision R. v. Gale, (NL PC), His Honour Judge Gorman explained this doctrine: [25] It has been held in Canada that the doctrine of de minimis non curat lex stands for the proposition that “the law does not care forsmall or trifling matters” (see Madam Justice Arbour’s dissenting reasons in Canadian Foundation for Children, Youth and the Law v.Canada (Attorney General), 2004 SCC 4 , [2004] 1 S.C.R. 76, at paragraph 200) and that “the law does not concern itself withtrifles” (see R. v.

Cuerrier, (SCC), [1998] 2 S.C.R. 371, at paragraph 21). [36] Judge Gorman went on to say at paragraph 29 that there was much to be said for the removal of trifling matters from judicialconsideration, but he noted that determining what was trivial is not an easy or obvious matter.

Judge Gorman also noted the importanceof distinguishing between the evidence that supports a charge and the penalty to be imposed in case of a conviction. [37] Judge Gorman then stated at paragraph 32: [32] The primary difficulty with applying the de minimis non curat lex doctrine to a criminal trial is the vague and uncertain nature ofthe excuse it creates (it is an excuse rather than a defence and should when successfully applied result in a stay of proceedings rather than an acquittal).

In Criminal Law (4th ed.), the authors (Manning, Mewett and Sankoff, Lexis Nexis, 2009, at page 527) note thatthough the arguments “against the de minimis principle are definitely compelling, the weight of the current jurisprudence and theinterests of justice both fall in favour of fully recognizing the defence.” [33] What is or is not trifling, in a specific situation, will be difficult to agree upon. This leads to the type of inconsistent verdicts weshould try to avoid.

Having said this, the doctrine has been defined in non-judicial contexts in a report prepared by the Canadian BarAssociation and in the American Law Institute's Model Penal Code (see Hinchey, at paragraph 69 and Canadian Foundation forChildren, Youth and the Law v. Canada (Attorney General), at paragraphs 204 and 206). [38] Judge Gorman concluded at paragraph 39 that the de minimis doctrine should not be a permitted defence or excuse in Canadianlaw due to “the inherent impossibilities in applying this doctrine in a reasonable and fair manner …” [39] By contrast, I refer to the decision R. v.

Ferreira, 2014 ONCJ 21 , where the Ontario Court recognized that there wasno clear appellate guidance as to the availability or unavailability of the doctrine of de minimis in Ontario. The court went on to say thatit was appropriate to recognize such a doctrine as a means to allow Criminal courts to properly “overlook a deviation that was a meretrifle that would weigh little or nothing on the public interest”. [40] In the decision R. v.

Murphy, 2010 NBPC 40, the New Brunswick Court applied the de minimis doctrine and found the accusednot guilty of a charge of assault. [41] In British Columbia, the de minimis doctrine has been recognized. The cases that have discussed or applied the doctrine includethe following: • R. v. McBurney

(1975) CanLii 1399 (BCAA) • Regina v Battie, • Regina v Brett, • R. v. Nagel-Joseph, (BCSC) • R. v. Dejong, 2005 BCPC 546 • R. v. A.S.B., 2006 BCPC 598 • R. v. Reddy, 2007 BCPC 384 • R. v. J.K.H., 2008 BCPC 13 • R. v. Symington, 2008 BCPC 362 • R. v. M.M.C., 2009 BCPC 290

• R. v. Kolebaba , 2011 BCPC 1 • R. v. Thorton , 2012 BCPC 360 • R. v. Creighton , 2012 BCPC 238 • R. v. Etherington , 2016 BCPC 186 [ 42 ] The weight of the case law in BC is that the de minimis doctrine is an available defence to a charge of assault. [ 43 ] The question then turns to whether the doctrine should be applied to this case. [ 44 ] I have considered the following: 1. Ms. Osachuk did not suffer any physical injury. 2. The contact with the leg did not last more than three seconds. 3. During the contact, Ms. Osachuk was seated and Mr. Toor was to her side, slightly behind her. Mr.

Toor stood above her during this time. 4. Ms. Osachuk’s ability to move away from Mr. Toor was restricted because she was seated. 5. Mr. Toor was intoxicated according to the police evidence. 6. Mr. Toor and Ms. Osachuk were strangers to each other. There was no reasonable expectation that either would demonstrate any degree of familiarity, such as physical contact, with the other. 7. The location of the contact, being the upper leg, was not one where incidental contact would typically occur or be reasonably anticipated, as may be the case with an arm or hand. It was clear from Ms.

Osachuk’s reaction that she did not expect any contact on her leg. 8. This case involved an interaction between a transit operator and a passenger. This was not a situation where incidental contact may typically occur or be reasonably anticipated, such as might occur in a crowd of people or a lineup. [ 45 ] I find that Ms. Osachuk was in a vulnerable position in relation to Mr. Toor. She was seated below Mr. Toor who was behind her.

She would have had difficulty defending herself if necessary. [ 46 ] I have also taken into account s. 269.01 of the Criminal Code , which states that in the case of an assault, it is an aggravating factor if the victim is a public transit operator engaged in the performance of his or her duties. This provision only applies at the time of sentencing but it also serves as an indication that the Government considers the protection of public transit operators to be of special importance.

I attribute this to the vulnerability that transit operators have during the course of their employment duties and their interaction with an assortment of bus passengers. [ 47 ] Given all the surrounding circumstances, Mr. Toor’s contact with Ms. Osachuk was not a mere trifle or of a minor nature. In my opinion, the doctrine of de minimis does not apply in these circumstances and Ms. Osachuk is entitled to the protection of the law. [ 48 ] I conclude that Surjit Singh Toor is guilty of an assault of Leah Osachuk. ____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia