R. v. Picanco, 2023 ONCJ 564

ONTARIO COURT OF JUSTICE CITATION: R. v. Picanco , 2023 ONCJ 564 DATE: 2023 03 21 COURT FILE No.: East Region: Alexandria Courthouse File #21-C2345-00 BETWEEN: HIS MAJESTY THE KING — AND — MATTHEW PICANCO Before Justice Peter C. West Evidence Heard December 1 and 2, 2022 Oral Reasons for Judgment delivered on March 21, 2023 Mr. L. Goldstein............................................................. counsel for the Crown Mr. E. Lavictoire......................... counsel for the defendant, Matthew Picanco WEST J.: [ 1 ] Matthew Picanco was charged with the following offences 1.

On or about the 13 th day of June in the year 2021, in the City of Cornwall in the said Region, did assault Yash Pathak, contrary to

Section 266 of the Criminal Code ; 2. Between March 1, 2021 to June 15, 2021, at the City of Cornwall in the said Region, knowing that Yash Pathak is harassed or being reckless as to whether Yash Pathak is harassed did without lawful authority engage in conduct referred to in paragraph 264(2) (

b) of the Criminal Code repeatedly communicate directly or indirectly with Yash Pathak thereby causing Yash Pathak to reasonably, fear for his safety, contrary to Section 264(1) of the Criminal Code ; and 3. On or about the 5 th day of July in the year 2021, in the City of Cornwall in the said Region, did in committing an assault upon Ameer Baqi cause bodily harm to him, contrary to

Section 267 (

b) of the Criminal Code . [ 2 ] The Crown called five witnesses, Yash Pathak, Jay Patel, P.C. Tylor Boileau, Ameer Baqi and P.C. Alex Roy. Matthew Picanco testified on his own behalf and his partner, Cameron Ashton was called as a witness. [ 3 ] The main issue in this trial is my assessment of the credibility and reliability of the witnesses and the application of the principles in R. v. W.(D.) . Position of the Parties [ 4 ] The Crown argued Mr. Picanco should be found guilty of all the charges he is facing because the Crown has proven each of those charges beyond a reasonable doubt. Mr.

Picanco should not be believed because of the inconsistencies in his evidence and his evidence should not leave the Court with a reasonable doubt in the context of the evidence as a whole. Finally the Crown witnesses should be accepted and their evidence provides the proof beyond a reasonable doubt of Matthew Picanco’s guilt. [ 5 ] Mr. Lavictoire points to inconsistencies in the evidence of the Crown witnesses, which he submits would at the very least when compared to Mr. Picanco’s evidence raise a reasonable doubt and the charges should be dismissed.

[ 6 ] I want to express my appreciation for the detailed written submissions provided by counsel in this matter, which clearly set out each counsel’s position and argument. Factual Background (

a) Charges of Assault and Criminal Harassment (

i) Yash Pathak [ 7 ] Yash Pathak is an international student studying business administration in Cornwall. He lived with 5 other students in the basement apartment at 345B 13 th Street West in Cornwall. He had problems with his neighbour Matthew who lived upstairs with his family. The landlord’s name was Abdul Baqi. There were two upstairs apartments and one basement apartment in this residential house. There were separate entrances to each of the apartments. Matthew’s entrance was at the front of the house and the basement apartment 345B and 345A entrances were at the side of the house, facing Churchill Street.

A Nigerian gentleman, Latif lived in 345A. Matthew was in 345 with his family. There was a garage, which was separate and it was locked and none of the tenants had access to it. [ 8 ] The five international students all spoke Gujarati. Yash spoke English from the time he was a child. When Matthew and his family first moved in he was nice and everything was fine. Yash testified Matthew came to the door to the basement apartment many times complaining about the noise from the basement. Yash was aware that Matthew lived with his wife and two young children.

Yash testified about an incident where Matthew broke the basement window with a bat because they were smoking outside. This occurred months before the water incident. Matthew always said they should not be living there and that they should leave. Yash and his friends were paying $2400/month rent, which they split. He agreed there were occasions when he and his roommates would have other friends over and have parties, where music was played. Mr. Pathak fairly conceded that he and his fellow students on occasion would have parties where Mr.

Picanco complained about the noise. [ 9 ] On June 13, 2021, Yash was waiting for his manager, Jay Patel, to pick him up for work at Circle K. Jay called to say he was outside on the street and Yash came outside his apartment door. Matthew was outside working on his garden and he began spraying water at Yash from his hose. He was saying to Yash he should go back to his country. This was the first time Matthew said anything like this to Yash. Matthew sprayed water all over Yash. Yash testified when Matthew did this he was laughing. Yash believed from this that Matthew’s actions were intentional.

He continued spraying Yash as he walked to his manager’s car and continued to spray the car after Yash got in. The passenger window of the car was open and water sprayed inside. The water got his manager wet as well. [ 10 ] Jay was video-taping Matthew with his phone as he was spraying the car. Matthew said they were brown people and should not be here. Yash took this as a racial comment by Matthew. When he said previously they should not be living there Yash took this as he and his fellow students should not be living in the apartment. Yash testified he told Matthew to stop spraying him.

Yash gave a statement to the police and this happened on June 13, 2021. They called the police and waited in the car until the police arrived. He went to work in his wet uniform as he only had one. There were no other incidents with Matthew after this. After this Yash testified he was scared of Matthew but he did not see him after his arrest. [ 11 ] Yash agreed that Matthew had a sprinkler he used to water his garden but on this occasion he was watering his garden with a pipe. Yash testified he and his roommates did not have a lease document renting the basement apartment.

They had a verbal agreement with the landlord. He did not know if the apartment was decommissioned and he did not know about the by-law officers. Matthew used to bang on the door complaining about the noise. He would complain about the noise and his kids trying to sleep. Yash agreed when friends were visiting there could be 10 people in the basement apartment. He agreed they had friends over once a week, music would be on. There was no smoking in the apartment and they smoked outside, cigarettes and marihuana. He agreed there could be a weekly get together, like a party.

He never turned off the water in the house. The hot water was never turned off. [ 12 ] Yash agreed when Matthew came and complained about them being there it was in respect of them being in the basement apartment. The comment about fucking Indians should go back to their own country was only said during the water incident. Yash disagreed he had used racial slurs towards Matthew. He never called Matthew a “bean picker”.

Yash testified he did tell the police officer about Matthew’s racist comment as he told the officer about Matthew saying, “brown people shouldn’t be here” and “you are fucking Indians, go back to your country.” [ 13 ] On the day of the water incident Yash testified he just got up that day and got ready to go to work. He was not going in and out of their apartment. He went out once his manager got there. Matthew was not washing his car on that day. He did not hit Matthew’s car as he walked out.

Yash was shown a photograph with a car trunk with missing paint and reddish brown marks but he did not think this was Matthew’s vehicle and he did not do this. (ii) Jay Patel [ 14 ] Jay Patel is a manager at Circle K in Long Sault. Yash Pathak worked at his store in 2021. Their shift on this occasion was at 1 pm and he was Yash’s ride. He was shown Exhibit 1A and 1B, which show the house where Yash lived with other students in the basement apartment at this house. He had never been inside the apartment.

He would pick up Yash and his car was parked out on the street beside the side of the house where the door to the basement apartment was located. He contacted Yash using his cell phone. When Yash came out he saw a guy outside watering his garden and he started spraying Yash. He initially thought the guy was just playing fun. Yash ran to his car and got in and the guy was putting water in through the open passenger window. Yash’s whole t-shirt was wet. The man came over to Jay’s car and started to put water on it and water came into the car as Yash got in. A little bit of water sprayed onto Jay and got him wet.

The inside of the car got wet but not a lot. The man was putting water on the car for 2-3 minutes. Yash called the police from inside the car. Both he and Yash spoke to the police after they arrived. The man had gone into his house before the police arrived. [ 15 ] In cross-examination Jay testified he did not recall telling the officer who came to the house he did not want to give a statement. He believed the police came to the store later on the same day. The man was not washing his car, he was hitting Yash with the water when he came outside and Yash was walking to Jay’s car.

Jay testified the only reason for the man to spray Yash was if he was angry or

kidding. He believed he was spraying Yash for a reason and did not believe it was an accident. Water came into Jay’s car. Mr. Patel did not recall the police contacting him in December about a video he took of the incident. He no longer had the video of the man spraying his car on his phone. [ 16 ] The man spraying water was not washing his car. Mr. Patel testified in cross that he never saw a sprinkler in the area Yash was running and getting wet. He saw the man spraying Yash with water as he was coming to get in Mr. Patel’s vehicle.

It was his opinion that the only reason to spray someone was “anger or kidding” and there was no possibility it was being done accidentally from what he saw. Water came into his car through the passenger door when Yash was getting in. (iii) P.C. Tylor Boileau [ 17 ] P.C. Boileau has been a police officer with Cornwall Police Service since 2019. On June 13, 2021, he was dispatched to 345 13 th Street West in the City of Cornwall at 11:47 a.m. respecting a neighbour dispute. He arrived at 11:54 a.m. He parked on Churchill Street facing northbound.

He observed two individuals later identified as Yash Pathak and Jay Patel sitting in a motor vehicle on Churchill facing southbound towards 13 th Street. He went to speak to them and observed them both to be soaked with water. He received information as to how this had occurred. He also observed the vehicle they were in was also wet with water. He did not have this noted but he had a specific recollection of that because it was not raining on this day. Yash Pathak appeared to be terrified and was shaking when he spoke to the officer.

He received information that comments were made by Yash Pathak’s neighbour, Matthew Picanco, for them to go back to their country, “Fucking Indians, Go back to your country.” [ 18 ] P.C. Boileau identified Matthew Picanco in court and on June 13 he attempted to speak with him about the allegation by Mr. Pathak. The front door of Mr. Picanco’s apartment was facing 13 th Street. The officer knocked on the door and Mr. Picanco was yelling at him through the front window. He would not come outside to speak to the officer. P.C. Boileau testified he tried to speak to him through the window but it did not work.

The officer believed he had reasonable and probable grounds to charge Mr. Picanco with assault. Mr. Picanco was upset and angry and was yelling at the officer. He was completely un-cooperative and was yelling his rights had been violated. The officer was in uniform. There were multiple marked police cruisers on scene. The officer left as a result of being unable to speak to Mr. Picanco. He was not aware of what the argument was prior to his arrival. [ 19 ] The officer watched a video taken by Mr.

Patel on his phone, which showed Matthew Picanco spraying the car with water from the hose he had while he was yelling at the two men inside the vehicle. He could not hear what Mr. Picanco was yelling. The video was being taken from inside the vehicle looking out the passenger window. He could hear Mr. Pathak calling 911. Mr. Picanco was outside yelling in an aggressive tone. He watched the video when he was at Circle K and interviewed Yash Pathak at 12:45 p.m. Mr. Patel did not wish to give a statement. Mr. Patel was supposed to provide the officer with the video but he never received it. [ 20 ] P.C.

Boileau testified he was aware of on-going disputes between Mr. Pathak and the accused at this residence, which had a number of apartments. The defence objected to the officer describing the various incidents the police responded to this address at 345 13 th Street West respecting complaints; however, I permitted this evidence to be led by the Crown. The following incidents were referred to: 1. March 4, 2021: Mr. Picanco called in a noise complaint, people living in basement with no lease, but he was not landlord; 2. March 8, 2021: People in unit not on lease; 3. March 31, 2021: Loud music complaint; 4.

April 9, 2021: 10 people in basement who did not reside there; 5. April 12, 2021: Illegal unit, should not be rented to anyone. Mr. Picanco would not answer questions; 6. April 15, 2021: No indication who initiated call. Mr. Picanco yelled at Ujas Chandhari and Yash Pathak to go back to their country, rushed at them with a hockey stick. Parties spoken to, did not want to press charges; 7. April 23, 2021: Mr. Picanco reported number of people going outside and smoking weed in a car; 8. May 2, 2021: Mr. Picanco called, police need to do their jobs, need to get people out of apartment as not legal. Mr.

Picanco became irate with police; 9. May 14, 2021: Mr. Picanco irate when landlord, Abdul Baqi came to fix window; 10. May 15, 2021: 345 13 th Street, mischief complaint. Students ongoing problems with Mr. Picanco and damage to door. 11. May 27, 2021: Complaint about Mr. Picanco getting angry over garbage bags and a mess all over the street; [ 21 ] P.C. Boileau advised he had attended some of these complaints; however, no charges were ever laid. The officer testified he formed grounds to charge Mr.

Picanco for criminal harassment as a result of the number of occasions police were called to this address. (iv) Ashton Cameron [ 22 ] Ashton Cameron was Mr. Picanco’s common-law spouse and they had two children, a son who is 1 year old and a daughter, age 6. She testified there was noise from parties held by the tenants in the basement apartment, 7 or 8 times and that she would go down to speak to them to turn the music down. They would turn it down but it would not last. She had no concerns about speaking to the students, she was friendly with them and they were friendly with her.

Matthew became very upset and angry by their behaviour and he believed it was an illegal lease. He called the bylaw people. He was upset because nobody did anything. She spoke to the landlord, Abdul, who

initially told the students to stop but later told Ms. Cameron maybe she should move. When the water incident occurred she was inside the apartment and did not see anything or hear anything. [ 23 ] In cross-examination Ms. Cameron testified everything she said in her statement came from things Matthew told her, as she did not see anything. This is concerning because she told the police in her statement that the tenant from the basement bumped her husband when he came outside and this was why the car got sprayed. Ms. Crawford testified she did not see any of the things she told the police in her statement she saw.

Everything she said she saw was what her husband, Matthew Picanco, told her. (iv) Matthew Picanco [ 24 ] He is 28 years of age and works at Value Village in the production room. His common law spouse is Ashton Cameron. They have two children and he also has another daughter, age 8. He and his family resided in the front apartment at 345 13 th Street West since July 1, 2020. As a result of being charged with these offences he was not permitted to return to this address to live. He had a lease agreement, marked as Exhibit 5. His rent was $1600.00/month.

He would make an eTransfer to the owner and made payments to the son as well when his father was sick. Abdul Baqi was the landlord. Latife lived in 345A by himself. There were 10 international students living in the basement apartment, 345B, but he observed more than that. [ 25 ] Mr. Picanco had numerous complaints concerning the apartment. There were no fire alarm or carbon dioxide monitors in the apartment. The downstairs apartment had gas appliances, which created a gas smell in his apartment. There is a noise by-law between 11 pm and 7 am, which was not complied with.

Every evening the international students made noise. They had parties that lasted from 10 pm to 3 or 4 am. This was 4-5 times a week. He had frequent conversations with them about this and advised them about the by-law. He told them repeatedly, civilly and politely, and asked them if they knew there was a bylaw in Canada respecting noise and it was past 11 o’clock. He contacted fire prevention and the by-law people to complain. The students would leave garbage all around the property and their cigarette butts outside their apartment door. He observed them going through his stuff that was outside.

All of the services for the units were in the basement. His interactions with them would become aggressive on their part when he went down to complain. He testified he was baffled by people not respectfully abiding by normal laws. They kept his kids up. [ 26 ] When Mr. Picanco was asked if he was ever aggressive with these students there was a long pause and he then responded, “I’ve always been non-aggressive.” He further said, “I hope I’ve always talked to them first. I never – never laid hands prior.” He testified he was always the non-aggressor because he lived there legally.

He said they ignored and dismissed his remarks. He never entered their unit. He has never used racial slurs. He never told them to go back to their country. He never broke a window. On one occasion when he went to complain about the noise he was pushed and he tripped over a chair and went into the window and it broke. [ 27 ] When he was asked about June 13, 2021, he testified he did not have any recollection of the identity of these individuals. The employees of Circle K had a routine. The car was parked on Churchill southbound. The driver never got out of his vehicle. Mr.

Picanco testified he was outside getting the sprinkler out for the garden. He was fixing things up with the flower bed. He was trying to get his hose and moving the sprinkler to a different location. One of the tenants did not come out at first after the car drove up and parked on Churchill, but after 5 minutes he did. Mr. Picanco went to shut off the sprinkler and he testified he did not spray anyone purposely. He does not know how this individual got wet but he walked across the grass to get to the car. He did not speak to this person at any point.

He never said, “Fucking Indians, Go home to your own country.” He never referred to this person as “brown.” When his lawyer asked if the person who walked to the car said anything to him he responded, “In their language,” which he did not understand. [ 28 ] In his evidence he referred to a hose but said he was watering his garden and the grass with a sprinkler.

At one point in his evidence he seemed to suggest he had been watering the grass and his garden with the sprinkler but someone from the basement apartment came out and turned off the water because there was only a 40 gallon water tank and when he watered the grass it caused a problem. So he had come out and turned the water back on. He did not know anyone had been sprayed with water. [ 29 ] In cross-examination he testified the guy in the car came every day to pick up the international student because they worked together. It was Mr.

Picanco’s evidence that the guy going to the car must have walked through the sprinkler himself and got wet that way. Mr. Picanco never picked up the sprinkler to spray him. He did not pick up the sprinkler and spray the car. He never brought the sprinkler anywhere near the car. Mr. Picanco testified he did not remember if he told Ashton that Mr. Pathak had bumped him and this was how he got wet. He told the Crown this happened a long time ago, which was why he did not recall. There was further questions put to him: Q. So you might have told her that he bumped you? A. (Non-verbal response). Q. You just shrugged.

Was that a… A. That’s like a – but there was no altercation. Q. Did you tell her that he bumped you? A. I don’t think like a – like a – an aggressive point of view but when you… Q. A shrug on the… A. When you’re on a common walkway, that’s a – that’s a chance of – and, you know, it’s like mopping the teeth but it doesn’t mean I’m trying to – to – to toy with him or try to get a reaction from my neighbour. Q. Did you tell her that there was a shrug on the shoulder, that – that he bumped you and then described it as a shrug on the shoulder? Did you tell her that? That’s all?

A. I believe so. Q. All right. But you just told us that there wasn’t a bump or a shrug. So were you lying to her or are you lying to us? A. It proceeds as to what you guys persist to what the bump is. You know? Q. Sure. The – the only thing that you heard – do I have your attention, sir? A. Yes. Q. Because I see you staring at the – at the picture. [Exhibit 1B] You can put it down if you want. A. No worries. Q. So – and I’m almost done here, I promise. The only thing you heard Mr. Pathak say that morning was something in their language. Right? A. Perhaps. Q. Well I’m asking you, sir.

Based on your evidence earlier and the answers you gave to your lawyer… A. How do I know if I’m not educated with their language. Q. I’m not asking you which language it is. I’m not asking you if you understood it? I’ll do it another way. Did you hear him say anything that you did understand? A. No. Q. All right. But Ashton testified that the neighbour called you a bean picker. Did you tell her that he said that, that Mr. Pathak called you a bean picker? A. Yes. And I always hear them over here making remarks and stuff like that, but, once again, that’s an uneducated perception of my ethnicity. Q.

But he didn’t say it that morning of that afternoon when – when he got wet. A. He could have. How would I have known? Q. Well, you didn’t tell her he may have. You told her he called you a name. That was a lie to Ashton, wasn’t it? A. No. Q. And you told us you did not spray the car. Right? A. Negative. Q. Negative. Did you spray the car? A. Negative, Q. You did not spray the car? A. There you go. Q. Am I correct? A. Yes. Q. You told Ashton you sprayed the front and the side of the car. Did you lie to Ashton or did you lie to us? A. Did not spray the car. Q. So you lied to Ashton? A. Negative. [ 30 ] Mr.

Picanco denied going out to the car and spraying it. (

b) Charge of Assault Cause Bodily Harm (

i) Ameer Baqi [ 31 ] Ameer Baqi’s father, Abdul, was the owner and landlord of 345 13 th Street in Cornwall. There were 3 apartments, one at the front of the house with the front door entrance (Ex. 1A: Mr. Picanco’s apartment); one in the basement with a door on the side of the house (345B: the international students’ apartment, Ex. 1B); and an apartment at the back of the house with the entrance close to the garage (345A). He stored his winter tires in the garage, which had a lock on the door and which the tenants did not have access to. His

father gave him the garage key to store his winter tires there. Mr. Baqi testified he had just changed his winter tires to his summer tires on this date. He pulled into the driveway, went to the garage door with two of his tires and unlocked the door. The tenant, Matthew Picanco, from the front unit came out and was videotaping him with his cell phone. He knew him because he had collected the rent from him when his father had surgery about a month before this date. Mr. Baqi had a black Mazda 3. He put the tires in the garage and then locked the door again. Mr.

Picanco was saying that he was loitering and he was not allowed to be there. He started becoming aggressive. Mr. Baqi did not respond to this. [ 32 ] He put the tires into the garage and he then got back into his car and left, but as he drove off he realized he had not double- checked the lock to make sure it was locked. So he circled around and came back. Mr. Baqi got out and went to the garage and heard Mr. Picanco yell to someone to call the cops. When Mr. Baqi went to the door to check to see if it was locked Mr. Picanco came running up. Mr. Baqi tried to ignore him but Mr. Picanco pushed him to the ground.

Mr. Picanco was on top of him. He started punching Mr. Baqi when he was on the ground, like ten times before he got off. After he pushed Mr. Baqi to the ground he said, “You want to go? Let’s go bud,” and then started punching him. [ 33 ] Mr. Baqi denied punching Mr. Picanco. Mr. Baqi denied swinging at him or pushing him. Mr. Picanco pushed Mr. Baqi with two hands to the ground. He was on top of Mr. Baqi punching him in the eye. He has two scars under his left eye from that. He punched Mr. Baqi on the left side of his head as well.

He went back to the stairs leading to his unit at the front of the house. [ 34 ] Mr. Baqi testified he was very dizzy when he tried to get up after Mr. Picanco got off him. He went to a neighbour’s house on Churchill and asked her for help. He called 911. The 911 call was attempted to be played in court but it was difficult to make it out. The Crown decided not to play the recording. The next day a transcript of the 911 call was marked as Exhibit B. Police attended and Mr. Baqi was taken to the hospital by ambulance. His medical records were marked as Exhibit 2 on consent.

A CT head scan was taken showing a fracture to the “right maxillary sinus extending to the orbital rim.” It should be noted that initially in his evidence Mr. Baqi testified the injury and scarring was to the left side of his face under his left eye; however, the medical records and his statement to police, July 6, 2021, at 13:09, indicate his injury and the fracture caused as a result of Mr. Picanco assaulting him was to the right cheek bone. In the hospital records Mr. Baqi also described being “assaulted, pushed to the ground and punched in the face/head ten times.” [ 35 ] In cross-examination Mr.

Baqi said he had his tires changed at Brothers Auto on July 5, 2021, and he maintained on that date those were the 4 tires he with him that he put into the garage. When he was asked whether he had posted ads selling tires on Facebook Mr. Baqi agreed he had. A number of photographs of screen shots of Tire Ads were put to Mr. Baqi, which he agreed were his ads on Facebook Marketplace, which were marked as Exhibit 3A-3D and 4A-4E. Mr. Baqi did not agree he was running a business out of his father’s garage. He testified he stored his tires there and he sold tires online.

He did not agree that people would be coming to this address to pick up tires, this only happened on one occasion. Every other occasion he or his brother would deliver the tires. He agreed he was storing tires in this garage under lock and key that he ultimately sold; however, he maintained on July 5, 2021, he only had his 4 winter tires, which he put in the garage to store. [ 36 ] Mr. Baqi disagreed he tried to hit Mr. Picanco with a tire to knock the cell phone out of his hand that he was using to record what Mr. Baqi was doing. Mr. Baqi denied going anywhere near to Mr.

Picanco, all he was trying to do was put his tires in the garage and leave. When Mr. Picanco came up to him he did not have a tire in his hands as he had already put them into the garage. When he came back the second time, just before Mr. Picanco assaulted him, he was just checking to make sure the garage door was locked. He had nothing in his hands then. Mr. Baqi denied punching Mr. Picanco, he never hit him. It was Mr. Picanco who pushed him to the ground and then got on top of him and punched him ten times before getting off. When he came back the second time Mr. Picanco was angry and pacing when he saw him.

When he first got there to check the lock he did not see Mr. Picanco until he came around the garage and came at Mr. Baqi in the driveway. [ 37 ] It was suggested to Mr. Baqi that his 911 call was different from his statement to police and the evidence he gave in court respecting the assault by Mr. Picanco; however, upon my review of the 911 call and Mr. Baqi’s statement there are no inconsistencies. In the 911 call he told the operator that he was pushed to the ground, “and then he’s punching me repeatedly for like five minutes, and he kept punching me.” In his police statement (Exhibit

C) he said, “…he shoved me to the ground. And then he got on top of me, and started punching me on this side of my face. About 10 punches in, he got off.” In my view there is no inconsistency on this aspect of his evidence. [ 38 ] Initially in his police statement Mr. Baqi implied he was assaulted by Mr. Picanco after he put the four winter tires into the garage and he had locked the door; however, the officer advised him that he had watched a video of Mr. Baqi unloading the tires and locking the door and then leaving. The officer asked if Mr. Baqi came back and Mr.

Baqi told the officer he did come back because he had not double-checked to make sure the garage door was locked. He came back as a result of Mr. Picanco confronting him as he was putting the tires into the garage and video-taping him, which distracted him and he did not know for sure if he checked the lock to see it was locked. So he turned around and drove back into the driveway. He saw Mr. Picanco pacing back and forth in the back area by the garage and he started to yell again at Mr. Baqi. This was when Mr. Picanco shoved him to the ground and began to repeatedly punch him. Mr.

Baqi agreed he may not have told the initial officer who responded to the 911 call that he had come to the garage twice. This was because the ambulance was there and the paramedics were going to take him to the hospital. Again, it is my view there is no inconsistency in Mr. Baqi’s evidence respecting when he says Mr. Picanco assaulted him or that he attended twice at the garage and the assault occurred on the second occasion. [ 39 ] When Mr.

Baqi was questioned about which side of his face the fracture was he testified he actually was not sure where the fracture was exactly, he just knows the scars are on the left side. [ 40 ] Mr. Baqi testified he did not know what Mr. Picanco’s grievance was with him, just that Mr. Picanco was angry at him. (ii) P.C. Alex Roy [ 41 ] He responded to the 911 call and arrived on scene at 14:16. He saw Mr. Baqi talking to P.C. Lague in the driveway. He did not see anyone else outside the house. The ambulance arrived then and they began assessing Mr. Baqi. He observed that Mr. Baqi’s face was

swollen on the right side. There was also blood on Mr. Baqi’s face. The swelling was enough to close Mr. Baqi’s right eye. Most of the blood was on the right side. He saw Mr. Baqi at the hospital and his right eye was swollen shut and injuries and swelling was on the right side of his face. He could not recall seeing any bruising or injury to the left side of Mr. Baqi’s face. (iii) Ashton Cameron [ 42 ] Ms. Cameron testified she was not outside during the altercation between the landlord’s son and her husband, so she did not know anything about it until police came to their apartment door.

She was aware of the July 5, 2021 incident from what her husband told her. She was inside the house when it occurred. She did not hear anything and did not see anything from the window of their unit respecting this incident. [ 43 ] She agreed that she and her husband did not have a key to the garage. It was not something they had access to as part of their lease with the landlord. She testified she saw what was in the garage, lots of tires. There were multiple people coming to their door inquiring about tires. This annoyed and angered her husband.

Her husband complained on more than one occasion about illegal tire sales occurring out of the garage. She had no idea of what happened between her husband and Abdul’s son. (iv) Matthew Picanco [ 44 ] People would come to their door inquiring about tires for sale, every couple of weeks. He would also see cars coming to the driveway. He did not have a key to the garage and he never saw what was in the garage. The side window of the garage was all boarded up. On July 5, 2021, he believed he was in the kitchen and he saw Ameer come onto the property through the kitchen window.

He testified he told Ashton he was going outside to see what was going on. He saw Ameer open his car’s trunk and remove some tires. He said there was another set of tires in the back seat. He testified there were probably two sets of tires or eight tires in Mr. Baqi’s car. [ 45 ] Mr. Picanco testified he told Ameer he was not supposed to be on the property without written notice by the landlord and asked him where his notice was. Ameer insisted it was his garage and he had every right to be there, to which Mr.

Picanco said, “There’s no way in hell because we live legally at 345 13 th Street.” He told Ameer he would be calling the police and would be video-taping him. He said Ameer was unsuccessful in unloading the tires from his car. Mr. Picanco said Ameer opened his trunk and was “attempting to unload illegal Chinese tires.” He then confronted Ameer again and told him he had to give 24 hour notice to tenants and Ameer had no response. Mr.

Picanco testified he gave Ameer a warning to leave peacefully and Ameer came back a second time and that was when the altercation took place. [ 46 ] Ameer shut his trunk and left but he then made a huge U-turn in the intersection of 13 th Street and came right back into the driveway again. Mr. Picanco testified he was in the midst of calling 911 when Ameer drove back into the driveway. When Ameer got out of his car Mr. Picanco testified he already had tires in his hand. Mr. Picanco confronted him and was video-taping him again. Ameer swung the tire in his hand and Mr.

Picanco’s phone was smashed because this caused him to drop it. Mr. Picanco testified his wife Ashton could vouch for this because she saw it happen. He also said he was unsuccessful in getting in touch with 911. [ 47 ] Mr. Picanco testified Ameer hit him with the tire at least a few times and forcefully tried to get through him. Ameer pushed Mr. Picanco to the side and Mr. Picanco said he tripped into his car, lost his phone and it was smashed. At this point Mr. Picanco says he tried to push Mr. Baqi back but he kept “aggressing” towards Mr. Picanco. Mr.

Baqi kept persisting on leaving the tires because he said he needed to bring his tires into the garage, these illegal Chinese tires. Mr. Picanco said Ameer must have been able to get at least one set into the garage, although originally he said two sets (8 tires) then he said he got none of the tires into the garage and now he says Mr. Baqi got at least one set into the garage. When he was asked what he meant by “a set” Mr. Picanco said, “his winter tires,” which is what Mr. Baqi testified he was trying to put in the garage after he had changed them. Mr. Picanco’s evidence concerning whether Mr.

Baqi was able to put tires in the garage was very inconsistent and it changed each time he was asked. [ 48 ] Mr. Picanco said Ameer had one tire in each hand and he might have got two into the garage when he first came back but when Mr. Picanco confronted him he was trying to bring more into the garage and he had another two. Mr. Picanco said he pushed Ameer back. The tires being carried by Mr. Baqi were making rubber marks on Mr. Picanco’s car that was parked in front of the garage. At this point Mr. Baqi dropped the tires and threw a right fist at Mr. Picanco and slugged him in the lower cheek. Mr.

Picanco said he did this at least a couple of times. As a result Mr. Picanco pushed Ameer down and tried to detain him so the police could arrive but Ameer kept pursuing and making jabs. Mr. Baqi was resisting Mr. Picanco attempting to hold his hands, he was screaming and spitting in Mr. Picanco’s face. Mr. Baqi was trying to use his phone to attack Mr. Picanco’s face. When Mr. Picanco got Ameer down on the ground Ameer started to cry, like whining, so he came off Ameer peacefully and civilly. Mr. Picanco testified Ameer was then able to call the paramedics and get the help he needed. [ 49 ] Mr.

Picanco then was asked how many times Ameer hit him before they went to the ground and Mr. Picanco now said, at least a couple or a few. Mr. Picanco was now also saying Ameer was hitting him in the upper torso and right side of his face and lower cheekbone, his jawline area, whereas he earlier had just said Ameer punched him in his right cheek. [ 50 ] Mr. Picanco testified he took Ameer down, tried to tie up his hands and he had taken police foundations and he grounded him as he was taught.

He did not use aggressive force on Ameer, he was just trying to detain him and when Ameer told him to get off he did and then Ameer got to call the paramedics. It was Mr. Picanco’s position that because Ameer is bigger than he is there would be some sort of force expected. Mr. Picanco was then asked when he had Ameer grounded did Ameer strike Mr. Picanco and he testified Ameer did. Ameer hit him with the phone he had in his hand on Mr. Picanco’s ear, which was “red and stuff.” Ameer did this at least another few times. Mr.

Picanco then said Ameer was striking him with his knuckles, his fists, his elbows, straight jabs but Mr. Picanco did not strike him back. When Ameer fell on the ground it was on the grass, not on the driveway or the pavement. Mr. Picanco testified he never punched Ameer in the face. [ 51 ] Mr. Picanco testified he was not trying to strike Ameer, he was only trying to ground him and detain him because he was being aggressive and persistent in trying to hurt Mr. Picanco. He probably grounded Ameer for no longer than a minute.

When he grounded Ameer, Ameer fell back onto the grass and luckily not the pavement driveway. He was just trying to detain him until the police arrived.

[ 52 ] In cross-examination Mr. Picanco testified he did not do anything to Mr. Baqi that could have caused the injuries Mr. Baqi suffered as a result of this altercation. Mr. Picanco never observed any blood on Mr. Baqi. He did not ever punch Mr. Baqi. When the Crown asked what Mr. Picanco meant when he testified Mr. Baqi was cursing in his language he said, “They have their language, we have our language.” The “we” referred to himself. [ 53 ] Mr. Picanco said he had given Ameer the first warning to leave the property peacefully, as he was in the midst of calling the police, which was when Ameer destroyed Mr.

Picanco’s phone, so Mr. Picanco had to detain him. He did not need it getting out of hand. Mr. Picanco said he detained Ameer for the safety of his family, who were inside the house. He agreed Ameer was not inside the house. He was protecting his family by detaining Ameer. He agreed Ameer never went to his door after he got his tires out of his car. He agreed Ameer was not walking towards him. When the Crown asked if Ameer was walking towards the garage, Mr.

Picanco said “He may have – no, he was actually coming to grab another set, so he had probably already made his way in,” (referring to already being inside the garage for which he had the key). Mr. Picanco saw him loading another two tires in his hands and Ameer “persisted to go into his garage but this time” Mr. Picanco “was there to confront him.” Mr. Picanco said he was a legal tenant and Ameer did not live at 345 13 th Street and Mr. Picanco had every right to defend his personal property from Mr. Baqi. [ 54 ] Mr. Picanco agreed he was there to confront Ameer, but not aggressively.

He was preventing Ameer from bringing his tires into the garage. Mr. Picanco said Ameer continued to try to get into the garage but he “continued to push [Ameer] back, not aggressively, just so that he can get out of the property or the property line and that’s when [they] fell together and [Ameer] fell back on the grass and that was when [Ameer] tried to persist in – in hurting [Mr. Picanco], but he was unsuccessful in bringing those tires.” [ 55 ] Mr. Picanco said his phone was smashed, yet he was still able to play the video he took for P.C.

Lague, [1] although other things in his phone were smashed because of Mr. Baqi swinging and hitting him with a tire. He did not provide the video to the officer because she did not want it. Mr. Picanco did not take any photos of injuries he said he sustained as a result of the altercation. The video apparently taken by Mr. Picanco was not shown in court or provided as evidence. Mr. Picanco testified he lost the phone but Ashton might still have the video somewhere in an iCloud backup. [ 56 ] Mr. Picanco also changed his evidence in cross-examination respecting when he said Mr. Baqi first punched him. Mr.

Picanco said they fell to the ground when he was trying to push Mr. Baqi off his property. It was when they were on the ground that Mr. Baqi was hitting him because he did not have his arms locked down, so Mr. Baqi was able to land punches in Mr. Picanco’s face, which was the “only visible area.” Mr. Picanco initially did not want to say whether Mr. Baqi punched him before they went to the ground, despite having previously saying in-chief that he had, Mr. Picanco now testified Mr. Baqi did not punch him until Mr. Picanco grounded him. [ 57 ] It was Mr. Picanco’s evidence that after he grounded Mr. Baqi, Mr.

Baqi was “crying and whining” and was very stressed out by what was going on. When Mr. Baqi asked Mr. Picanco to get off of him, he got off. When the Crown questioned Mr. Picanco about grounding Ameer Mr. Picanco changed his previous testimony and said Ameer “could have tripped over himself, lost his balance.” He continued to say that Ameer “stumbled over his own footing because he’s a larger man” than Mr. Picanco. They fell together and Ameer took a hard impact.

When the Crown then asked, “So you didn’t take him down, notwithstanding the multiple times you told us you took him down, that you grounded him, he tripped and fell and he dragged you down?” Mr. Picanco’s response, “Perhaps.” Mr. Picanco later in cross-examination testified that Mr. Baqi’s face may have been swollen from the impact from when he hit the ground on the grass, which because of the hot summer he testified was “tough grass.” Law relating to R. v. W. (D.) and R. v. Villaroman [ 58 ] As in any criminal case, Matthew Picanco is presumed innocent until proven guilty.

I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.) . [2] Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt.

Proof of guilt to a near certainty is required in criminal proceedings. [ 59 ] The onus remains on the Crown to prove Matthew Picanco’s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility . Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole.

If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt. In this case Mr. Picanco testified on his own behalf. I must consider his evidence to determine whether I accept the evidence given or if I do not accept the evidence given, whether it raises a reasonable doubt in respect of the evidence as a whole. [ 60 ] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v.

Dinardo , [3] at para. 23 : The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.) . Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.) ; it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected.

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment. [ 61 ] Further, the W. (D.) framework does not require a trial judge to assess the accused’s evidence in isolation and to proceed through the three steps in sequence. I adopt the following analysis of Justice Code in R. v. Thomas , [4] 23 In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass

through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2"). See: R. v. Edwards , 2012 ONSC 3373 at paras. 13-25 (S.C.J.) , where the authorities on this point are discussed at some length. 24 Mr. Gold's approach is unworkable in practice.

A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence.

The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence. [ 62 ] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between the Crown’s evidence and the evidence of the defendant. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) ; [5] and Avetsyan v. The Queen . [6] [ 63 ] As the Ontario Court of Appeal in R. v.

Hull , [7] noted: W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. [ 64 ] I must assess the evidence of the Crown and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits.

The Court of Appeal in Hull continued: However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused. [ 65 ] Proof beyond a reasonable doubt means what it says.

There is thus nothing illogical in rejecting a defendant’s evidence but still not being sufficiently satisfied by the other evidence to find that the case has been proven beyond a reasonable doubt. A state of uncertainty at a trial is not uncommon.

Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of a defendant or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus . [8] [ 66 ] This case is no different and it turns to a significant extent on my assessment of the witness’ evidence where their credibility is germane.

From my review of their evidence there was nothing that would cause me to believe any of them were incapable of being reliable witnesses, apart from the passage of time. [ 67 ] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation.

It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it.

However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence. [ 68 ] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence.

It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt. [ 69 ] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v.

Villaroman , [9] is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” ( see R. v. Wu . [10] ) These are the legal principles I must use in my assessment of the totality of the evidence led during this trial.

The Law Respecting Criminal Harassment [ 70 ] Section 264 (1) of the Criminal Code of Canada provides: No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them [ 71 ] In R. v. Sillipp [11] ;, Berger J., for the Alberta Court of Appeal, set out the five essential elements of the offence of criminal

harassment that the Crown must prove beyond a reasonable doubt (para. 18): 1) It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (

d) of the Criminal Code. 2) It must be established that the complainant was harassed. 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless orwilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant's fear was, in all of the circumstances, reasonable. Cited with approval in R. v. Kohl[12] and R. v.

Krushel[13] [72] The word "harassed" in section 264(1) of the Criminal Code has been defined as "tormented; troubled; worried continually orchronically plagued; bedeviled and badgered": R. v. Kosikar[14]. Those words are to be considered individually, not cumulatively: R. v.Kordrostami[15]. [73] I am also mindful of the following admonition in the recent decision of the Ontario Court of Appeal in R. v. Province:[16] Parliament has not defined the term "harassed" or, for that matter, "harassment".

The authorities make it clear, however, that it is notenough that the conduct vexes, disquiets or annoys the complainant. What is required is that the conduct "tormented, troubled, worriedcontinually or chronically, plagued, bedevilled and badgered" the complainant: Kosikar, at para. 24, citing R. v.Lamontagne (1998), (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.), at p. 188. [74] The conduct itself need not be directly threatening or harassing, the test is whether it reasonably caused the complainant to beharassed.

The ultimate test is an objective one, with due consideration for the circumstances in which the threatening conduct took placeand its effect on the complainant: R. v. Province, at paras 121-123. [75] In R. v. Ohenhen,[17] MacFarlane, J.A., in determining what constitutes “repeated communication” held as follows: While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(

c) and (d), it will not be sufficient to satisfy s. 264(2)(b).More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and shouldnot be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occursmore than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has beenrepeated conduct. The approach is a contextual one.

The trier will consider the conduct that is the subject of the charge against thebackground of the relationship and/or history between the complainant and accused. It is in this context that a determination will bemade as to whether there has been repeated communication. On the facts of this case, it was clear that neither the communications couldbe characterized as innocuous or accidental. In the context in which they were made, these two communications would be sufficient toconstitute "repeatedly" communicating as set out in s. 264(2)(b).

The Law Respecting Assault and Assault Causing Bodily Harm [76] The offences of assault and assault causing bodily harm are set out in the Criminal Code of Canada. Section 265 (1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose;

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. 266 Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of anoffence punishable on

summary conviction who, in committing an assault, (

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

b) causes bodily harm to the complainant, or (

c) chokes, suffocates or strangles the complainant. [77] A person who directly or indirectly applies force intentionally to another person, or who attempts or threatens to do so, hascommitted an assault. Bodily harm is defined in

section 2 of the Criminal Code and “means any hurt or injury to a person that interfereswith the health or comfort of the person and that is more than merely transient or trifling in nature.

[ 78 ] The Crown elected to proceed by

summary conviction on these three charges. Analysis [ 79 ] This case is not a complicated one. The defence conceded date, jurisdiction and identity. On the evidence in this trial there was no claim made that the altercations alleged between Matthew Picanco and Yash Pathak or Matthew Picanco and Ameer Baqi were consensual fights. Further, although Matthew Picanco alleges that Ameer Baqi was the aggressor in the altercation and that Mr. Picanco was only defending himself and his property, no submissions were made by either counsel respecting the provisions of sections 34 and 35 of the Criminal Code .

Despite this I intend to address these sections later in my reasons. [ 80 ] The central issue is one of credibility and if I accept Matthew Picanco's version of events or if I reject his evidence but I am left with a reasonable doubt after considering it in light of the whole of the evidence I must acquit him. If my assessment is that neither of those two findings are available on the evidence I must then consider whether the evidence I do accept proves beyond a reasonable doubt Matthew Picanco’s guilt respecting the three charges he is facing.

It is clear from his evidence that his version of the events respecting June 13, 2021, what I will call the “water incident” and the events respecting July 5, 2021, what I will call the “tire incident” are completely polar opposites. Criminal Harassment Charge [ 81 ] Dealing first with the charge of criminal harassment it is my view that the Crown has not proven this charge beyond a reasonable doubt and that charge is therefore dismissed. [ 82 ] I have come to this conclusion for a number of reasons.

First, I only heard evidence from Yash Pathak respecting occasions when Matthew Picanco came to the door of the basement apartment complaining about noise and other issues, what I would term as “tenant” issues. On the evidence I heard that police were called by Mr. Picanco respecting his beliefs concerning landlord/tenant issues on numerous occasions and the police responded. I have no doubt from the police perspective these frequent 911 calls reflected a serious neighbour dispute. I have no doubt Mr. Picanco believed that the basement apartment (Mr.

Pathak testified there were 5 tenants, all international students, although Mr. Picanco testified he believed there were 10 tenants, which was something he was told by a man who installed a new furnace) was illegal. Whether this is correct is not the focus or the issue to be determined in this criminal trial. Mr. Picanco, based on my view of the evidence, decided to take matters into his own hands and tried to involve the police. Mr.

Picanco had other legitimate and legal means to address these issues, but he chose not to pursue those avenues and instead decided to enforce what he believed the law respecting these landlord/tenant issues to be. It is my view however, these complaints to police, which were identified by P.C. Boileau, do not prove beyond a reasonable doubt that Mr. Picanco was guilty of criminal harassment. [ 83 ] Second, while I have very strong suspicions that Mr. Picanco may harbour inappropriate and prejudiced attitudes and beliefs towards individuals in his community that were different from him, Mr.

Pathak indicated that the only occasion Mr. Picanco made a comment about the colour of Mr. Pathak’s skin or his race, was when he turned the water hose on him when he was walking from his apartment door to his manager’s vehicle to go to work on June 13, 2021. As I indicated in my discussion respecting the law as it relates to the offence of criminal harassment pursuant to s. 264(2) (b), there must be more than one instance of unwanted conduct to meet this

section ; however, there is not and should not be any minimum number of instances of unwanted conduct required to trigger it. It was Mr. Pathak’s evidence this was the only occasion he felt threatened by Mr. Picanco. Based on Mr. Pathak’s evidence, he was obviously not aware of the earlier incident referred to in P.C. Boileau’s evidence, which was not introduced for the truth of the hearsay evidence he referred to, but was permitted to be led to demonstrate the number of occasions the police attended the address of 345 13 th Street West. All of Mr.

Picanco’s calls were in relation to landlord/tenant issues, including the noise complaints, which made up the majority of police attending the address. [ 84 ] Third, I have no doubt that Mr. Pathak was afraid of Mr. Picanco on the day that he was sprayed by Mr. Picanco with a hose and Mr. Picanco made the despicable comments described by Mr. Pathak. I accept Mr. Pathak’s evidence respecting Mr. Picanco making what can only be described as “racist” comments towards him.

If the police had laid a charge pursuant to section 264(2)(d), where the Court of Appeal has held that one incident of threatening conduct directed at another person can be sufficient to prove criminal harassment, my decision frankly would have been very different. As I identified above in my discussion of the law, under s. 264(2)(

b) section there must be more than one incident. Another avenue the Crown had available to attempt to prove a charge under s. 264(2)(

b) was to call several of the international student tenants respecting Mr. Picanco’s behaviour towards them personally; however, the police did not conduct interviews of these other potential witnesses and I did not hear any evidence, other than the hearsay evidence of P.C. Boileau respecting the number of times the police attended this address. As I have discussed most of the calls to the police were by Mr.

Picanco in respect of his landlord/tenant issues. [ 85 ] Therefore, on the whole of the evidence called during this trial respecting the charge of criminal harassment pursuant to s. 264(2) (b), I find the Crown has failed to prove beyond a reasonable doubt that Matthew Picanco repeatedly communicated directly or indirectly with Yash Pathak thereby causing him to reasonably, in all the circumstances, fear for his safety and that charge is therefore dismissed.

Assault of Yash Pathak: “The Water Incident” and the Assault Causing Bodily Harm of Ameer Baqi: “The Tire Incident” [ 86 ] I will start by indicating that for the reasons which follow I do not believe or accept the evidence of Matthew Picanco, nor does his evidence raise a reasonable doubt in respect of the “water incident” or the “tire incident”. There are several areas of his testimony which cause me serious concerns about his lack of forthrightness and honesty.

His evidence was internally inconsistent in a number of areas during his evidence in-chief, as well as being inconsistent between what he said in chief and later in cross-examination. As well, there were a number of inconsistencies within the evidence he gave in cross-examination. It was my view that Mr. Picanco’s evidence changed as he testified, in that he often added things or completely changed what he had testified to just moments before. He was often evasive and argumentative during his testimony.

Often during his evidence he would volunteer purported negative information about the international students he said others had told him, despite being cautioned several times by his counsel to only give evidence respecting his personal observations of events and incidents he was actually involved in. It is my view this demonstrated he had an agenda when he testified.

[ 87 ] Initially Mr. Picanco testified it was just Mr. Pathak who was outside on June 13, 2021, but later in his evidence he said there was another tenant from the basement standing by the door to the basement apartment. This made no sense whatsoever because Mr. Picanco was supposedly watering his garden in this area. When his lawyer asked further questions about this other individual Mr. Picanco changed his evidence and said once again only Mr. Pathak came out to go to his manager’s vehicle. [ 88 ] Mr.

Picanco’s evidence demonstrated he often had an agenda and animus towards the tenants who resided in the basement apartment. His animus towards the international students was fueled by his perception that their tenancy was illegal, they did not have a lease agreement, there were too many tenants in this apartment and that they repeatedly had parties where they made noise that kept his children and he and his wife awake. He also expressed animus towards his landlord, Abdul Baqi, who he believed had an illegal tenancy renting to the international students in the basement.

He was upset and angry over the constant littering around the property caused by these students. No evidence was led by the defence as to what the law is respecting residential houses converted by the owners into rental units. Further, it is my view whether Mr. Picanco was correct in his view of this basement apartment’s legality is not the issue I must determine in this criminal trial. Mr. Picanco would certainly have legal means to address any landlord/tenancy issues he believed applied to the apartment he was renting; however, he could not enforce those laws himself.

Assault of Yash Pathak: “The Water Incident” [ 89 ] On June 13, 2021, Yash Pathak testified he left his apartment at 345B 13 th Street and saw Mr. Picanco watering his garden with a hose. As he started to walk towards his manager’s vehicle on Churchill Street, which ran north/south beside the house, Mr. Picanco started spraying him with water. He knew it was intentional because Mr. Picanco was laughing. I do not accept Mr. Picanco’s evidence that Mr. Pathak walked through a sprinkler Mr. Picanco testified he was in the process of moving to water his garden. His explanation that Mr.

Pathak was sprinkled with water by accident does not accord with the observations of P.C. Boileau or the evidence of Jay Patel or Mr. Pathak. Mr. Patel testified he regularly attended this address to pick up Mr. Pathak who worked with him at the Circle K convenience store in Long Sault. He did not know Mr. Picanco. He saw the man with the hose (Mr. Picanco) throwing water on Yash. He initially thought this guy was “playing fun.” Yash ran to his car and got in the front passenger door and the guy followed him and continued spraying Yash and Mr. Patel’s car. Water sprayed inside his car as Yash got into it and Mr.

Patel got wet as well. Yash called 911 from inside his car. The man was saying something outside the car and looked angry. He went inside his house before the police arrived. Mr. Patel testified there was no sprinkler. [ 90 ] P.C. Boileau arrived after the incident and observed both Mr. Pathak and Mr. Patel’s clothes to be wet by water. Mr. Patel’s vehicle was wet with water and it was not raining. Mr. Picanco agreed Mr. Patel did not come out of the car, yet his clothes were wet. He was sitting in the driver’s seat. The passenger window according to both Mr. Pathak and Mr. Patel was down when Mr.

Picanco was first spraying water on Mr. Pathak as he ran to Mr. Patel’s vehicle. Mr. Pathak told P.C. Boileau that Mr. Picanco was yelling at him and saying, “Fucking Indians, go home to your country.” P.C. Boileau also saw a video on a cell phone that Mr. Patel had taken from inside the car, which showed Mr. Picanco spraying Mr. Patel’s car with water and he was yelling aggressively at them. He could not make out what Mr. Picanco was saying. [ 91 ] The officer attempted to speak to Mr. Picanco about the complaint and went to the front door of 345 13 th Street and knocked. Mr.

Picanco was very uncooperative and would not come out to speak to the officer and was yelling that his rights were being violated. Mr. Picanco was upset about the illegal apartment in the basement. P.C. Boileau left after Mr. Picanco refused to speak to him and went to Circle K and took a statement from Mr. Pathak. If Mr. Picanco had been watering the grass and his garden with a sprinkler as he claimed during his testimony, I would have thought he would have shown this sprinkler to P.C. Boileau when the officer wanted to speak to him about what had occurred, yet Mr.

Picanco refused to speak to the officer and only expressed his upset about the illegal tenants and their apartment in the basement. [ 92 ] Mr. Picanco’s conduct in spraying Mr. Pathak with water as he initially began to walk to his manager’s vehicle to go to his employment and then he began to run because of being sprayed with water is clearly an application of force without consent by Mr. Picanco. The only reasonable inference available in my view respecting the fact that Mr. Patel’s clothes, where he is sitting in his vehicle, and Mr. Pathak’s clothes are both wet with water and Mr.

Patel’s vehicle is wet with water (observations of P.C. Boileau and evidence of Mr. Patel and Mr. Pathak) is that Mr. Picanco intentionally sprayed them with the hose. Mr. Pathak said Mr. Picanco was watering the garden and lawn with a pipe and not a sprinkler. Both Mr. Pathak and Mr. Patel testified there was no sprinkler. Mr. Picanco’s evidence in considering it in the context of the whole of the evidence respecting this incident does not cause me to have any doubt that his application of force was intentional and without the consent of Mr. Pathak. Further, I find this was no accident or Mr.

Picanco being playful and just having fun, playing a prank. [ 93 ] Further, his wife, Ms. Cameron testified her husband told her that the international student bumped him and this was why the student got wet and why he sprayed the side and roof of the car. Mr. Picanco initially denied that Mr. Pathak bumped him and he testified he had no idea how Mr. Pathak got wet. This changed to Mr. Pathak must have walked through the sprinkler to get to the manager’s car and he got sprayed and wet. When the Crown put to Mr. Picanco his wife’s evidence about Mr.

Pathak bumping him he initially said he did not say that but then said maybe he had and this was how he got wet. It is further my view that based on Ms. Cameron’s evidence she was told what to say to the police in her statement by Mr. Picanco but when she was called by the defence she told the Court that what she told the police she saw and observed were things her husband told her happened. It is my view that Mr. Picanco was behind her misrepresentations to the police in her statement. (See paragraph 29 above for Q and A) [ 94 ] Mr.

Picanco said Mr., Pathak said something to him in “their language,” which he testified he did not understand. Yet he told his wife Mr. Pathak called him a “bean picker.” When the Crown asked if he told his wife this he said he had because the students were always calling him this, which he said was “an uneducated perception of [his] ethnicity.” Yet he testified earlier Mr. Pathak did not say anything he was able to understand. This evidence demonstrates how Mr. Picanco’s evidence changes on an impulse to suit his purpose and agenda. This is a further example of Mr. Picanco’s lack of forthrightness and honesty.

I found this occurred repeatedly throughout his evidence. [ 95 ] I accept the evidence of the Crown witnesses, who were not shaken in cross-examination and who gave their evidence in a straight forward manner, without any embellishment. Further, I accept Mr. Pathak’s evidence concerning Mr. Picanco’s derogatory

comments, which in my view were fueled by Mr. Picanco’s animus and upset over what he believed was an illegal apartment with too many tenants, who did not comply with noise bylaws and who were disrupting his family’s enjoyment of their apartment. It is my view that Mr.

Picanco’s issues were of a landlord and tenant nature and he decided to take action himself against the international students and unfortunately on June 13, 2021, Yash Pathak was the international student who bore the brunt of that upset and animus. [ 96 ] As a result of my findings respecting the evidence dealing with the water incident I find Matthew Picanco guilty of assaulting Yash Pathak. Assault Causing Bodily Harm of Ameer Baqi: “The Tire Incident” [ 97 ] On July 5, 2021, Ameer Baqi testified he had just changed his winter tires over to summer tires at Brothers Auto. The defence sought to discredit Mr.

Baqi’s evidence by demonstrating that he had a tire business, selling Chinese-manufactured tires, that he readily agreed he stored in his father’s garage at 345 13 th Street and that he sold tires online. Mr. Baqi in my view was not evasive concerning the fact he was advertising tires for sale on Facebook Marketplace and Kijiji. He admitted this even before the photographs (Exhibit 3A-

D) were shown to him. He maintained however that on July 5 he was bringing his personal winter tires to the garage to store them. In fact even Mr. Picanco referred to the tires Mr. Baqi was putting into the garage as being his “winter” tires at one point in his own evidence (paragraph 47 above). [ 98 ] Mr. Picanco’s evidence in-chief and cross-examination concerning Mr. Baqi bringing tires out of his Mazda 3 was completely inconsistent from one moment to the next. What is clear from Mr. Baqi’s evidence and from the portion of his police statement shown to him by Mr. Lavictoire when P.C. Lague told Mr.

Baqi about a video she observed made by Mr. Picanco, was that Mr. Baqi went to this address on July 5, 2021, and put 4 tires (what he said were his winter tires) into the garage, for which he had a key that unlocked the garage door. Mr. Picanco apparently video-taped Mr. Baqi and told him he had no business to be there and that he should leave and the video showed him leaving. This is what P.C. Lague said she had observed on the video. She also indicated that she observed on the video Mr. Baqi making a U-turn and coming back. Mr.

Baqi immediately advised the officer he did come back because he had not double-checked to make sure the garage door was locked because Mr. Picanco had distracted him when he was video-taping him being there and yelling for him to leave, saying he had no business being there. In fact, Mr. Picanco also agreed that Mr. Baqi came back into the driveway a second time and went back to the garage door before Mr. Picanco was able to confront him again. [ 99 ] Interestingly, Mr. Baqi testified that he told Mr.

Picanco he had every right to be there because it was his garage (his father owned it and had the only key) and he was storing his winter tires there and he advised Mr. Picanco he had the key and had every right to be there. Mr. Picanco agreed in cross that Mr. Baqi did not go into Mr. Picanco’s apartment, nor did he go to Mr. Picanco’s front door and knock, all he did was go to the garage that he had a key which opened the door. Both Mr. Picanco and his wife Ms. Crawford testified they did not have access to the garage as it was locked by the landlord and they did not have a key. It is my view that Mr.

Picanco was completely incorrect as to his understanding of landlord/tenant law respecting a landlord having to provide 24 hour notice before entering a garage for which the tenants had not been given access. Ameer Baqi was going to a garage that his father, who was the landlord, had retained control of and which was not part of any of the three apartment units in this residential house. The garage was a separate building and it is clear to me that Mr.

Baqi’s father had given him permission to store tires there – the Chinese-manufactured tires Ameer Baqi was selling through Facebook Marketplace, as well as his winter tires that he had just changed, albeit somewhat late given the date he was putting them into the garage. I accept Ameer Baqi’s evidence this was his purpose in coming to the garage. As such, I find there was no obligation on the landlord or his son, Ameer, to give 24 hour notice as he was not entering any of the three apartment units. [ 100 ] Further, Mr. Picanco testified he never saw what was in the garage, which was inconsistent with Ms.

Cameron’s evidence, as she testified she saw stacks of new tires in the garage. Mr. Picanco testified the only window in the garage was boarded up because the glass was broken so it is difficult to understand how Ms. Cameron saw stacks of tires inside the garage. I believe the selling of tires by Mr. Baqi was something Mr. Picanco discovered on Facebook Marketplace after he was charged and that the photos entered as Exhibits 3 and 4 were discovered after the charges were laid. Mr. Picanco testified Ms. Cameron could vouch for what happened between he and Mr.

Baqi, yet that was not her evidence, as she testified she did not see anything that occurred between her husband and Mr. Baqi as she was inside the house and did not hear or see anything. This does not make sense given Mr. Picanco testified he saw Mr. Baqi pull into the driveway through the kitchen window and he told his wife he was going to investigate what was going on. Given his wife’s evidence of how upset and angry her husband was because of his belief Mr. Baqi was selling tires from this garage and all of the people who came knocking on their door looking for tires one might have expected Ms.

Cameron to continue to watch her husband go outside to confront Ameer Baqi. [ 101 ] Mr. Picanco’s evidence concerning when he saw Mr. Baqi arrive in the driveway and start to remove tires from his Mazda 3 was also fraught with multiple inconsistencies. He testified he saw Mr. Baqi take out two tires from his car and this was why he went outside to see what Mr. Baqi was doing. He said at one point he probably got the first two tires inside the garage before he confronted Mr. Baqi and was putting another two tires inside the garage when Mr. Picanco first confronted him and video-taped what he was doing. Mr.

Picanco testified Mr. Baqi probably had two sets of tires in his car, for a total of eight tires. Based on Mr. Picanco’s evidence I do not think he saw how many tires Mr.

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