Court File and Parties

Court File No.: Durham Region - Oshawa Ontario Court of Justice

Between:

Her Majesty the Queen

T. Boodoosingh, for the Crown

— And —

Balamuralee Sothinathan

R. Richardson, for the accused

Heard: October 1, 2012

Decision

Wong, J.:

[1] Charges and Crown Evidence

Balamuralee Sothinathan pleaded not guilty to charges of Kidnapping, Forcible Confinement, Uttering Death Threats, Robbery, Break and Enter and Fail to Comply with Probation. The Crown called three witnesses: the complainant, a former vice-principal of a high school, and the arresting officer.

[2] Main Issues

The main issues are identification and credibility.

Evidence

[3] The Abduction

On March 5, 2012, the complainant, Mateus Ribeiro (age 20) was a grade 12 student at Durham Alternative Secondary School. At about 11:00 am, he finished classes and was walking towards the Sears Warehouse. Suddenly, a red Honda Civic Hatchback (either a 1991 or 1992 model, the witness was unsure) pulled up with four males inside. According to Mr. Ribeiro, one of the males was the defendant, who he referred to as "Bala". Bala told him to get in the car and that they had a knife; if he did not get in the car, Bala threatened they would hurt him. Mr. Ribeiro climbed into the backseat of the two door car and he was in the middle: Bala sat to his right; a Filipino male to his left; the driver was a black male; and the front passenger was a white male.

[4] The Robbery in the Vehicle

Mr. Ribeiro described the route the driver took: "right on King Street, then they turned on Park…and so on". En route, Mr. Ribeiro said Bala slapped his right cheek because the complainant was moving; punched him three times in the stomach and threatened him with more assaults if he continued to move. Mr. Ribeiro said Bala and the Filipino male began emptying his pockets. They located his two cell phones, his wallet, driver's license, birth certificate, $40, social insurance card, student card, and some business cards from the company where he was working. He also had two bank cards: one from Scotiabank and the other from CIBC. Mr. Ribeiro testified the men wanted to know if he had any more money so they made him call the number on the back of the bank cards. According to the complainant, he called the numbers and after providing personal information on the account, the numbers on the front of the card, the security number from the back over the speaker phone, but not his password: he was advised that he was overdrawn $10 on each card.

[5] The Threat and Diversion to Home

The group wanted more money. From his driver's license, they found out where he lived and Bala, who was doing all the talking, asked him if he had more money at his house? Mr. Ribeiro said "no", which was the truth. According to Mr. Ribeiro, by now they had driven him so close to Oshawa Lake that it was visible. Bala told him that if did not tell them where he had more money, they would beat him up and throw him in the lake. According to Mr. Ribeiro, he thought they were going to kill him so he decided to tell them he had money at home. In addition, his mother was home and Mr. Ribeiro figured it was the only way he could get out of the car.

[6] The Break and Enter and Escape

Mr. Ribeiro stated the route the driver took to his home in the town of Brooklyn. The complainant said he deliberately directed them to his neighbour's house at 118 Shrewsbury instead of his house at 114 Shrewsbury. However, someone noticed the different address from the driver's license so they pulled into Mr. Ribeiro's driveway. He was told to "Get out" and go the house and open the door. The driver and the front passenger exited first because it was a two-door car; then Bala, then himself and the Filipino male. Bala and the Filipino male each grabbed him by his elbows and everyone went up to the front door. Once on the porch while still being held, he took out his house key and unlocked the door. Someone from the group opened the door and all four assailants rushed inside. Immediately, Mr. Ribeiro said he yelled loudly for his mother. When his mother appeared from the kitchen, all four males ran back out the front door and into their vehicle. Mr. Ribeiro said his mother rushed to lock the front door asking him what was going on, who were those people? He told her it was alright, and opened the door to give chase and see if he could see a license plate. Mr. Ribeiro said he could not read the front license plate because the Honda was parked very closely to his mother's car. He smashed his fist on the front windshield because he was so angry, which caused the windshield to crack. Mr. Ribeiro agreed he was surprised the windshield cracked so easily considering he did not cut or injure his hand. As the Honda pulled away, he was unable to see the license plate because the vehicle was moving quickly.

[7] The 911 Call

Mr. Ribeiro and his mother called 911. It is not disputed that Mr. Ribeiro reported the incident and reported the name "Bala" to the 911 dispatcher. He later gave the police the same name.

[8] The Photo Line-Up

At some point, Mr. Ribeiro gave the police two statements: one was videotaped with the complainant being shown a photographic line-up. It is not disputed that when Mr. Ribeiro was initially shown the line up, which contained a photograph of Mr. Sothinathan, he told police that he did not recognize anyone. However, it is also not disputed that Mr. Ribeiro asked to see the line-up again and this time pointed to Mr. Sothinathan's photo and said he was "75%" positive this was the person named Bala. In court, Mr. Ribeiro said he was 100% sure that the person in the photograph was Bala, and he identified Balamuralee Sothinathan, who was seated in the prisoner's box as one and the same.

[9] Vice Principal's Evidence

Crown counsel also called Llewellyn Jones, the former Vice Principal of Durham Alternative Secondary School, which is where Mr. Ribeiro attended. On March 8, 2012, police contacted the school and asked Mr. Jones if he knew a student named "Bala". Mr. Jones did not recognize the name and entered it in the computer system. The computer search located the defendant before the court, who was registered as a student. Next, Mr. Jones did a manual search of photographs taken of students for their student identification cards, and located a photograph of Mr. Sothinathan. It was Mr. Sothinathan's school photograph that police used in the photo line-up, and which ultimately Mr. Ribeiro said he was "75% sure" was Bala.

[10] Quality of School Photograph

Defence counsel agrees the photograph of his client is a very poor quality colour photocopy, and that the photo barely resembles Mr. Sothinathan as he appeared in court. The school photograph shows Mr. Sothinathan with very short almost shaved hair, and lighting is so poor that his face appears in dark shadow. In court, Mr. Sothinathan had a full head of medium length hair.

[11] Arresting Officer's Evidence

Police Constable Alain Lepierre was the last Crown witness. P.C. Lepierre arrested Mr. Sothinathan on April 20, 2012. When asked by the Crown if the defendant's appearance in court was the same or different than when he was arrested in April, P.C. Lepierre said the defendant's hair in court was longer. The officer served Mr. Sothinathan with a Notice of Intention to Produce Certified Copies of a Probation Order, for which the defendant was bound to comply with on March 5, 2012.

Counsel's Positions

[12] Crown's Position

The Crown submits the court should find Mr. Ribeiro's testimony credible that firstly, the events he described on March 5, 2012 took place; and secondly that the main assailant was the defendant, Balamuralee Sothinathan. Mr. Boodoosingh, for the Crown, submits Mr. Ribeiro's identification of the defendant is reliable because the complainant knew Mr. Sothinathan prior to the incident.

[13] Defence Position

The Defence argues Mr. Ribeiro's story is fanciful and improbable. Mr. Richardson argues Mr. Ribeiro is a drug dealer, who needed to concoct a story because he owed people money and/or drugs so he allowed them into his house; and panicked when he found his mother at home. Counsel submits there were a number of inconsistencies in Mr. Ribeiro's story to police and what he said in court; therefore, the court should reject his evidence or at least have a reasonable doubt that he was kidnapped and robbed. Further, Defence submits Mr. Ribeiro's identification of Mr. Sothinathan has no value because it is an in-court dock identification. Counsel argues the lack of any corroborating evidence renders Mr. Ribeiro's evidence unreliable.

Analysis

[14] Credibility of the Complainant

Mateus Ribeiro was a very direct and forthright witness. He agreed with many of Defence counsel suggestions including that although he has no youth court or criminal record, he has outstanding charges of importing and a subsequent breach of a recognizance. Both of those charges are still before the courts. Mr. Ribeiro also agreed that he had been expelled from his previous school.

[15] Demeanour in Court

Mr. Ribeiro did not appear to enjoy being in court. For a 20 year old with obviously some level of "street smarts", he did not come across as smug, sarcastic or over confident.

[16] Consistency and Restraint in Evidence

He also did not exaggerate his evidence: he did not see a knife or any other weapon; he was not injured by the slap or the punches he received in the car. The entire incident took between 40-45 minutes and Mr. Ribeiro stated that while he took the threat that he would be beaten up and thrown in the lake very seriously and thought he might be killed, I did not find he tried to overstate his evidence. The only time Mr. Ribeiro became emotional was during cross examination when it was noted that since March 2012, his 61 year old mother died of cancer.

[17] Clarity and Consistency of Testimony

Mr. Ribeiro's evidence was very detailed and with the exception of a few minor insistencies, which I will review momentarily, he testified about what he says was a 40-45 minute event with impressive clarity and consistency.

[18] Minor Inconsistencies

Defence counsel suggests Mr. Ribeiro's in-court testimony is inconsistent with the version of events he told police. First, I disagree that there was any discrepancy in Mr. Ribeiro's evidence on whether the Honda was on Pine Street when it first approached him; or that the assailants learned of his home address from his driver's license. I have read and re-read my notes on these two issues, and I fail to see any contradictions. As such, if I am in error, I am confident the discrepancies are very subtle. I do, however, agree that the complainant's testimony about when he had his cell phone taken away from him differed slightly from his version apparently he told police. Initially in examination in chief, Mr. Ribeiro testified that when he was in the car, the assailants took his two cell phones. In cross examination, he agreed he told police that they took the cell phone he was holding when he was still outside the car, and the other phone was taken when he was inside. I do not find, however, this to be a major inconsistency or that the witness was intentionally trying to mislead the court.

[19] Confusion Regarding T4 Scam

However, I am unsure why Mr. Ribeiro appeared confused or evasive relating to contact he says he had with Bala relating to some sort of T4 scam at Money Mart. During cross examination, Mr. Ribeiro initially agreed that the week before, Bala and another black man had approached him about cashing cheques at a Money Mart. He said the black guy did not ask him to do the T4 scam, it was Bala. However, moments later he agreed he told police that a black guy first approached him to do the scam and then Bala later came and asked him to do the same. Finally, Mr. Ribeiro settled on that Bala was present both times including when the black guy first approached him, and then he was by himself the second time. Mr. Ribeiro agreed with Defence counsel that he had plenty of time to see the defendant. (When Defence counsel asked Mr. Ribeiro why anyone would approach him and ask him to be involved in criminal activity such as a fraudulent T4 scam, the complainant said that a lot of people tell him that he is easily influenced. When Defence counsel followed up and asked if that was the situation which lead to the drug charges, Mr. Ribeiro said "no").

[20] Kidnapping in Broad Daylight

Defence counsel further submits that Mr. Ribeiro's version of events is fanciful and improbable. First, counsel argues that it would have been impossible for the complainant to have been kidnapped in broad daylight without someone hearing or seeing him struggle. According to Mr. Ribeiro he screamed "Help me", but he was on the wrong side of the school for the smokers standing outside to hear him. Other than that, Mr. Ribeiro did not describe any physical struggle between him and the alleged assailants. Further, I am not sure a passerby seeing five teenage boys/young men, all about the same age, rushing towards a car and pushing one another inside would necessarily raise alarm bells. If the situation were different, for example, a young child being pushed into a car or even a female, then perhaps more notice would be taken although, as history has shown, that is not always the case.

[21] Diversion to Neighbour's House

Counsel also argues that it makes no sense for the complainant to have directed the group to his neighbour's house when, as he claims, they had his driver's license and hence his address. As I remarked to Defence counsel during his submissions, I thought it was very clever of Mr. Ribeiro to try and lead the group to somewhere other than his own house, but according to the complainant, his diversionary tactic did not work because someone in the car caught on.

[22] Two Cell Phones and Drug Dealer Inference

Mr. Richardson also asks the court to question Mr. Ribeiro's explanation as to why he had two cell phones; and counsel asks the court to infer that Mr. Ribeiro was a drug dealer. According to the witness, one cell phone had a pre-paid plan and he was trying to use up the minutes; and the other was a new cell phone Mr. Ribeiro got the week before. The complainant denied the suggestion that one phone was a "burner" phone, which he acknowledged was commonly used by drug dealers so phone calls cannot be traced. Mr. Ribeiro said both of his cell phones were in his own name. In addition, counsel argues it would have been impossible for the complainant to phone the bank and check his account balance on line without giving the bank his personal identification number (PIN) or password.

[23] Lack of Corroborating Evidence

Defence counsel submits the Crown could have obtained copies of Mr. Ribeiro's cell phone records as confirmatory evidence that he called the bank; as well counsel asks the court to take judicial notice that in order to access information over the phone, a customer would have to enter their PIN number or password. Counsel also submits the Crown ought to have called confirmatory evidence to support the complainant's testimony that he knew Mr. Sothinathan because he had seen him two weeks prior at his high school. Defence counsel argues that without confirmatory evidence, the court should reject Mr. Ribeiro's evidence.

[24] Court's Approach to Corroborating Evidence

While confirmatory evidence can assist the prosecution in proving their case, there is obviously no rule that without confirmatory evidence a witness' testimony cannot be accepted. The court shall consider the entirety of the witness' evidence including their ability to observe, the circumstances of their observations, whether their evidence is consistent or inconsistent internally and compared to the other evidence, the witness' demeanour and so forth. In this case, the only confirmatory evidence that the Crown ought to have been expected to call would have been Mr. Ribeiro's mother, who was present when allegedly Bala and the others entered the home; however, her death obviously prevents an adverse inference being drawn. As for judicial notice that someone has to enter their PIN or password on the phone in order to access an account balance of their account is beyond my scope of knowledge or so notorious that I can make a finding.

[25] Cracked Windshield

Counsel argues that it would have been impossible for Mr. Ribeiro to hit the windshield with his fist and crack the glass. To agree with that finding would presuppose that the 1991 or 1992 Honda's windshield was in good condition. Mr. Ribeiro described the crack was "two lines" approximately eight inches long as opposed to the windshield shattering.

[26] Assailants Leaving Complainant Unattended

Mr. Richardson also argues that it made no sense for the four suspects to finally enter the house and then leave Mr. Ribeiro, as he says, standing by himself on the front steps – free to run or call police. Crown counsel submits the group's main goal was to get inside. Once inside, they would not have cared what Mr. Ribeiro did. However, I also note from Mr. Ribeiro's description, once the front door was open everything happened very quickly: the group rushed in, he shouted for his mom, she came out, and the group fled. What is not disputed is that Mr. Ribeiro and/or his mother called 911, and the complainant described his assailants. In hindsight, was it careless for the group to leave Mr. Ribeiro alone albeit for less than a few seconds? Perhaps, but this was not a sophisticated abduction although it was planned and reasonably well executed.

[27] Drug Dealer Inference

Finally, the Defence submits that Mr. Ribeiro was a drug dealer and the court can infer that because of his outstanding drug related charges and that he had two phones. While I am not satisfied that there is sufficient evidence to infer that Mr. Ribeiro was a drug dealer, it is noted that even drug dealers can get robbed.

[28] Acceptance of Complainant's Evidence

In assessing Mr. Ribeiro's evidence, I accept his evidence that he was taken from the streets, robbed, threatened and then driven to his home where his assailants forcibly entered his home for the purpose of stealing. His story made sense, his demeanour and his actions were consistent with what he said happened, his evidence for the most part was consistent, and his credibility was not undermined by cross-examination. I found Mr. Ribeiro was a very good witness and accept his testimony.

[29] Identification Issue

The remaining question is whether the Crown has proven beyond a reasonable doubt that the person he says was "Bala" was the accused before the court.

Identification Evidence

[30] In-Court Dock Identification and Prior Acquaintance

Mr. Richardson submitted numerous cases for the proposition that an in-dock court identification of a suspect who is a stranger has no probative value when there is no other evidence of identification. In assessing this case, I am also mindful of the inherent frailties of identification evidence, which has been the subject matter of frequent judicial consideration, Law Reform Commissions and inquiries. But in this case it was not a witness attempting to identify a stranger. According to Mr. Ribeiro, he was familiar with Mr. Sothinathan before this incident.

[31] Prior Contact with the Accused

Although he did not know Bala's name until the other people in the red Honda called him "Bala", Mr. Ribeiro testified he had previous involvement with Mr. Sothinathan. He testified he had seen the defendant "a bit" at school in September, at the beginning of school year, "but not too much". Then for a period of time, he did not see him at all. But a "couple of weeks" before this incident, the complainant said he saw the defendant "constantly" or "daily" at school. Defence counsel did not challenge Mr. Ribeiro on this evidence. As well, Mr. Ribeiro described seeing Bala once or possibly twice the week before relating to the alleged T4 scam.

[32] Physical Description

In court Mr. Ribeiro described Bala as a little darker skinned than himself; at the time of the incident, Bala wore a silver stud earring, a grey coat and blue jeans. The court is unaware of Mr. Ribeiro's initial description of Bala that he gave to police. However, Defence counsel did not cross examine Mr. Ribeiro regarding his original description to police only that it was generic, which Mr. Ribeiro agreed. When asked by Defence counsel what ethnicity he thought Bala was, he said "Somalian". The Court notes that Mr. Sothinathan appears to match this general description of being a dark skinned individual, possibly Somalian.

[33] Name "Bala" Given to 911

During the 911 call immediately after the incident, the complainant gave the name "Bala" to the operator and later again to police.

[34] Photo Line-Up Procedure

When shown a photo line-up, Mr. Ribeiro did not initially pick out the defendant's photo. However, he later asked to see the photographs again and this time he picked out Mr. Sothinathan's photo and said he was "75% sure" it was a picture of Bala. There was no evidence called regarding the quality of the photo line-up or the questions put to Mr. Ribeiro by police. However, the photo line-up procedure was videotaped so I will assume both counsel were satisfied the photo line up was fully recorded; and the interview properly and impartially conducted.

[35] Quality of Photograph and Uncertainty

Defence counsel's position is that if Mr. Ribeiro was so familiar with Mr. Sothinathan, then he ought to have had no difficulty picking his photo from a photo line up. However, as previously stated, the quality of Mr. Sothinathan's school photograph was very poor. From the courts perspective, and which Defence counsel agrees, the defendant's photograph only vaguely looks like Mr. Sothinathan as he appears in court considering the different hair style and length, and the dark shadows in the photo over much of his face. In addition, I have no evidence of Mr. Sothinathan's appearance in March 2012, let alone in April when he was arrested, other than in court his hair was longer. Under these circumstances, I do not find Mr. Ribeiro's uncertainty when selecting Mr. Sothinathan's photograph as "75% sure" as determinative of the issue of identification because there is other evidence of identification.

[36] Name as Corroborating Evidence

I also have Mr. Ribeiro's evidence that the suspect's name was "Bala", which is a shortened form of the defendant's first name, "Balamuralee". Again, this is only one piece of the evidence and not solely determinative of the issue.

[37] Vice Principal's Evidence and School Attendance

Vice Principal Jones' evidence was that Mr. Sothinathan was registered at Durham Alternative Secondary School from November 2011 to January 2012, but that he had no timetable; which meant that the defendant was not studying any classes. Initially, Mr. Richardson opposed the evidence as hearsay, but then asked the court to rely on it because, as Mr. Richardson submits, if Mr. Sothinathan was not a student at the school in February and March, how could Mr. Ribeiro have seen the defendant at school daily for the two or so weeks leading up to the incident? Defence counsel did not cross examine Mr. Ribeiro that "seeing" Mr. Sothinathan at school every day meant that the complainant saw his client in classes daily; as opposed to just seeing the defendant hanging around the school. Vice Principal, Llewellyn Jones' testimony left me with the impression that Durham Alternative Secondary School (DAYS) is a school designed for harder to manage, less academic students; hence the name, "Alternative". DAYS only offers grade 11 and 12 credits, and the average age of the students is between 18 and 21 – they try not to take students who are 17 years old. It seems reasonable to me that "seeing" Mr. Sothinathan at school does not necessarily equate to "seeing him in a classroom".

[38] Opportunity to Observe

Finally, having accepted Mr. Ribeiro's evidence that he was kidnapped and held for approximately 40-45 minutes, I am satisfied that he had ample opportunity to observe his assailant in conditions where he was able to fully see his captors, in good light, without obstruction, and for a prolonged period of time. There is no evidence that Mr. Ribeiro colluded with anyone before calling 911 and telling the operator the name "Bala" as one of the suspects.

[39] Conclusion on Identification

In all of the circumstances, I am satisfied that Mr. Ribeiro has credibly and reliably identified his kidnapper as Balamuralee Sothinathan. I am satisfied the complainant was so well acquainted with Mr. Sothinathan as to make the identification certain and safe.

Conclusions

[40] Proof Beyond Reasonable Doubt

I am satisfied the Crown has satisfied proof beyond a reasonable doubt on all of the charges before me. The Defence does not argue that the Crown has failed to establish any of the essential elements of the offences, subject of course, to the rulings on credibility and identification.

[41] Verdict

As such, Mr. Sothinathan will be found guilty of all charges before this court except for count 2 the charge of Forcible Confinement. Count 2 will be stayed because the defendant will be found guilty of Count 1, which is Kidnapping. Mr. Sothinathan will also be found guilty of Count 6, Fail to Comply with his Probation order which had as a condition that he keep the peace and be of good behaviour.

Released: October 4, 2012

Justice M. Wong

Footnote

1See R. v. Hibbert, 2002 SCC 39, 2002 S.C.C. 39, [2002] 2 S.C.R. 445 at para. 49; R. v. Tebo, 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 at para. 19 (Ont. C.A.); R. v. Manley, 2011 ONCA 128, [2011] O.J. No. 642 at para. 20