BC man who pushed 86-year-old during dispute outside Costco loses manslaughter appeal

The BC Court of Appeal has upheld the manslaughter conviction of a man who claimed he lashed out in self-defence, in part because of his claustrophobia, resulting in an elderly man's death at a Vancouver Costco in 2017.

A ruling released Monday says Thomas Toth was convicted of manslaughter in 2020, three years after he got into a physical altercation with 86-year-old Orlando Ocampo "that had tragic consequences."

The ruling says Ocampo pepper-sprayed Toth, who then pushed the elderly man, causing him to hit his head and he died a month later in hospital.

In his appeal, Toth claimed the judge failed to properly instruct the jury about self-defence, his claustrophobia and other grounds, but the three-judge panel found no "reversible error" in the trial judge's jury instructions.

The ruling says the lower court judge's instructions about what constitutes a consensual fight were "flawed," but that didn't result in a miscarriage of justice.

Justice Barbara Fisher says in the ruling that though the judge's instructions to the jury about the issue of consent were flawed, the Appeal Court found no evidence to support that the fight between Ocampo and Toth was consensual.