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    • Manslaughter conviction upheld after B.C. man cites claustrophobia in fatal Costco altercation

    Orlando Ocampo is seen in an undated photo from an online obituary website. Orlando Ocampo is seen in an undated photo from an online obituary website.
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    British Columbia's highest court has upheld a manslaughter conviction against a Vancouver man who shoved a senior outside a busy Costco store, rejecting his argument that the trial judge failed to consider how his claustrophobia and fear of crowds led to the fatal altercation.

    Thomas Stephen Toth was sentenced to 18 months in jail and two years of probation for the death of 86-year-old Orlando Ocampo after an altercation outside the downtown Vancouver Costco on Dec. 20, 2017.

    At trial, the jury heard that the two men bumped into each other while leaving the crowded store that morning. A brief verbal argument ensued before Toth, then 57 years old, walked to the curb to wait for a taxi with his 16-year-old daughter.

    Upset by the encounter, Ocampo went to speak with a security guard and the two approached Toth about the altercation. Another argument erupted and Ocampo sprayed Toth and his daughter with pepper spray.

    Ocampo had turned to walk back towards the store when Toth pushed the senior from behind, causing him to fall, strike his head on the ground and lose consciousness. He died in hospital three weeks later.

    Claustrophobia and self-defence

    Toth appealed his conviction on the manslaughter charge, arguing the trial judge did not properly instruct the jury to consider how his claustrophobia disoriented his senses and provoked a self-defence response.

    He also argued the Costco security guard's testimony, which suggested the fatal shove was neither "justified" nor "necessary" for self-defence since Ocampo was already walking away, was a prejudicial opinion and should not have been allowed as evidence.

    Delivering the Appeal Court panel's decision Monday, Justice Barbara Fisher found the lack of jury instruction on claustrophobia and the admission of the security guard's evidence did not constitute significant errors of the lower court.

    The judge noted that while Toth's claustrophobia was highlighted by his lawyer during her opening statement at trial, its relevance to the defence's case seemed to diminish as the trial wore on.

    That aside, Fisher found the jury was fully aware of Toth's condition, which was exacerbated by the crowds at the store that morning.

    "Toth’s claustrophobia was one element of the factual milieu that the jury would not have forgotten, as it was linked to the evidence of his emotional state and his ability to observe and perceive," Fisher said.

    Regarding the admissibility of the security guard's evidence, the panel was unanimous in finding the jury had a sufficient understanding of the law of self-defence and was not relying on the guard's testimony as expert opinion on the matter.

    "While [the security guard] was a key witness, there were numerous other witnesses who observed the incident, and in the context of all that evidence, [the security guard's] opinion formed but a small part," Fisher said.

    The court dismissed the appeal and upheld Toth's conviction in the manslaughter case.

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