[url="http://www.theglobeandmail.com/servlet/story/LAC.20070221.CANE21/EmailTPStory/TPNational"]Woman, 76, attacked with a cane - but she was able[/url]
PAUL WALDIE
Walburga Schaller is 76 years old, blind in one eye, has an artificial hip and severe arthritis, and walks with a cane. But she isn't afraid of a scrap. Just ask Robert Smith.
Ms. Schaller and Mr. Smith had never met until a spring afternoon in June, 2005, when they both set off on errands on the same west Toronto street. Ms. Schaller was going to the bank near her home and she took her usual path on the right-hand side of the sidewalk.
Mr. Smith, 52, was heading to a medical appointment and he was also walking with a cane because of a foot injury.
As they walked toward each other, both expected the other to give way.
Neither did and they ended up standing directly opposite, so close their shoes almost touched and Mr. Smith's glasses nearly rubbed Ms. Schaller's eyes.
That's when things turned nasty, the court file says.
First came an exchange of insults, then obscenities.
Cherie Coyle, who lived nearby and watched the altercation, testified in court that Mr. Smith and Ms. Schaller soon began hitting each other with their canes, both landing several blows.
Finally, Mr. Smith walked around Ms. Schaller. As he went by, Ms. Schaller said he pushed her shoulder and she called him a "bastard."
Mr. Smith then whacked her one last time with his cane near her collar bone, according to court files. He hit her so hard his cane shattered into pieces and Ms. Schaller fell to the ground. A bystander helped her up and called the police. Mr. Smith was arrested and charged with assault.
In court, Mr. Smith acknowledged hitting Ms. Schaller but insisted he was acting in self defence. He testified that he'd bought the cane that day for $14 "and that it was cheap and possibly filled with termites."
In an interview yesterday Ms. Schaller recounted the impasse on the sidewalk.
"He looked me straight in the eye and said 'You old *****, **** yourself,' " Ms. Schaller said, recalling her testimony in court.
"I couldn't believe it. I was stunned. I never knew the guy. I never saw him in my life and I told him, 'No, you **** yourself.' "
According to the court file, Mr. Smith folded his arms, rested his cane on one arm and said: "I have all day."
"So do I," responded Ms. Schaller. Then she warned him that she would break his glasses if he didn't move, according to court files. Mr. Smith was not deterred.
He said he tried to go around Ms. Schaller but she said she would teach him how to treat a lady and rammed her cane into his stomach. As he walked around her, Mr. Smith said Ms. Schaller whacked him with her cane. "That was it," he told the court, and he brought his cane down on her.
Ms. Schaller denied striking Mr. Smith and told the court that she had several bruises on her arm and back of her head as a result of his blows. It took her weeks to recover but there was no lasting damage, the court heard.
In a ruling made public this week, Judge Howard Borenstein, of the Ontario Court, sided with Ms. Schaller, but he didn't let her off the hook, calling her actions aggressive. "Despite her age, and her cane, she is not a shrinking violet," the judge said.
"I find that they were both hitting each other, probably without sufficient force to cause any injury at first. Then, Mr. Smith delivered the last shot -- the coup de grâce," the judge said. "Even if the two, by their conduct, could be said to have consented to this duel of canes, the last strike was so beyond the pale as to be beyond any consent."
The judge found Mr. Smith guilty, saying his blow was excessive and unnecessary. "Despite Mr. Smith's foot, he could have easily kept walking away at that point. In the result, Mr. Smith will be found guilty of assault with a weapon." He received a two-year suspended sentence.
Mr. Smith and his lawyer were unavailable for comment.
Ms. Schaller said she was pleased with the outcome. She said she never thought of suing Mr. Smith for damages. "I don't want the money," she said. "I want him to get punished for what he did."
