R. v. Storoschuk (A.W.), (2014) 601 A.R. 1 (PC)

• Judge: Cummings, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 23, 2014
• Citations: (2014), 601 A.R. 1 (PC);2014 ABPC 299

R. v. Storoschuk (A.W.) (2014), 601 A.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.131

Her Majesty the Queen v. Alan William Storoschuk (120907563P1; 2014 ABPC 299)

Indexed As: R. v. Storoschuk (A.W.)

Alberta Provincial Court

Cummings, P.C.J.

May 23, 2014.

Summary:

The accused, a prison inmate, threw a mug containing vomit and urine at a fellow inmate and a correctional officer as they walked down the corridor outside his cell. The accused was charged with two counts of assault with a weapon.

The Alberta Provincial Court found the accused guilty.

Criminal Law - Topic 39.6

General principles - Mens rea or intention - Transferred intent or transferred malice - Storoschuk, a prison inmate, held a mug containing his own vomit and the urine of three other inmates - As a correctional officer (Matthews) and another inmate (Badger) walked down the corridor outside his cell, Storoschuk threw the contents of the mug in their direction - The substance hit Matthews' face, arm and the front of his shirt - Badger was also hit with the substance - Storoschuk was charged with two counts of assault with a weapon - The Alberta Provincial Court considered the fact that Storoschuk's intended target was Badger as opposed to Matthews - The court stated that "Even though Matthews was not the intended target, some of the substance still landed on him and the accused's intended contact with Badger was thereby transferred to Matthews. The mens rea of the assault directed at the accused's intended victim, Badger, was in part intercepted and transferred to the actus reus of the same offence committed on Matthews. To this extent, the mens rea concerning Badger lacked an actus reus and the actus reus concerning Matthews lacked mens rea. However, in combination, they amount to a whole crime against Matthews through the application of the doctrine of transferred intent." - Storoschuk was therefore guilty of assaulting both Matthews and Badger - See paragraphs 31 to 38.

Criminal Law - Topic 1123

Weapons - General - What constitutes a weapon - [See Criminal Law - Topic 1416 ].

Criminal Law - Topic 1411

Assaults - Intention or mens rea - [See Criminal Law - Topic 39.6 ].

Criminal Law - Topic 1416

Assaults - Assault with a weapon - Storoschuk, a prison inmate, held a mug containing his own vomit and the urine of three other inmates - As a correctional officer (Matthews) and another inmate (Badger) walked down the corridor outside his cell, Storoschuk threw the contents of the mug in their direction - The substance hit Matthews' face, arm and the front of his shirt - Badger was also hit with the substance - Storoschuk was charged with two counts of assault with a weapon - The Alberta Provincial Court found Storoschuk guilty - The vomit and urine constituted a "weapon" as that term was defined in s. 2 of the Criminal Code - Vomit and urine were substances that could pose serious health risks - The circumstances under which the substance was designed, intended for use and ultimately used established that it was meant to cause injury, to threaten and to intimidate - See paragraphs 55 to 65.

Cases Noticed:

R. v. Phan (L.) (2009), 476 A.R. 323; 2009 ABPC 190, refd to. [para. 25].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 29].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 30].

R. v. Roberts (1990), 99 N.S.R.(2d) 81; 270 A.P.R. 81; 60 C.C.C.(3d) 509 (C.A.), refd to. [para. 42].

R. v. Richard (1992), 110 N.S.R.(2d) 345; 299 A.P.R. 345; 72 C.C.C.(3d) 349 (C.A.), refd to. [para. 43].

R. v. McLeod (1993), 84 C.C.C.(3d) 336 (Yuk. C.A.), refd to. [para. 44].

R. v. Strong (J.) (2012), 323 B.C.A.C. 243; 550 W.A.C. 243; 288 C.C.C.(3d) 357; 2012 BCCA 279, refd to. [para. 46].

R. v. Lamy (E.), [2002] 1 S.C.R. 860; 284 N.R. 311; 2002 SCC 25, refd to. [para. 47].

R. v. Singer (S.D.), [2004] A.R. Uned. 282; 2004 ABPC 29, refd to. [para. 49].

R. v. Felawka, [1993] 4 S.C.R. 199; 159 N.R. 50; 33 B.C.A.C. 241; 54 W.A.C. 241; 85 C.C.C.(3d) 248, refd to. [para. 51].

R. v. D.M.I. (2009), 478 A.R. 288; 2009 ABPC 127, refd to. [para. 52].

R. v. Brennan (2003), 58 W.C.B.(2d) 241 (N.L. Prov. Ct.), refd to. [para. 54].

Authors and Works Noticed:

Tremeear's Annotated Criminal Code (2013), generally [para. 41].

Watt, David, Manual on Criminal Evidence (2012), p. 107 [para. 28].

Counsel:

T. Dwyer, for the Crown;

D. Kolba, for the Defence.

This matter was heard before Cummings, P.C.J., of the Alberta Provincial Court. The following reasons for judgment were delivered orally at Calgary, Alberta, on May 23, 2014, and filed in writing on December 22, 2014.