minicounsel

ONTARIO COURT OF JUSTICE DATE: September 25, 2024 COURT FILE No.: 24-81300498

BETWEEN:

HIS MAJESTY THE KING

— AND —

BASKARAN BALASOORIYAN

PUBLICATION BAN S. 486.5(1)

Before: Justice Angela L. McLeod

Trial: April 24, May 1, May 14, July 9, September 19, 2024

Counsel: MIRIAM VILLAMIL-PALLISTER, counsel for the Crown JEFFREY FISHER, counsel for the Applicant

McLeod J.:

Overview

1Mr. Balasooriyan was driving a 2010 Honda Accord when he was pulled over by police. The vehicle was stolen. He was a person of interest in a rapidly developing investigation into an attempted child abduction. He was stopped a few blocks from where the alleged, failed abduction took place. He was stopped minutes after police had been called.

2He was charged with possession over $5000 relating to the vehicle; attempted abduction of a person under the age of 14 years; mischief for wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property (public park); and criminal harassment of the intended abductee.

3It is admitted that Mr. Balasooriyan was the person in question at the park and the person arrested in the stolen vehicle. Date, jurisdiction, and the age of the alleged victim are also not in issue.

4The alleged victim (A.K-M.) was 12 years of age on the day in question. The statement of A. K-M. was admitted pursuant to s. 715.1 of the Criminal Code.

[5] The issues to be considered are: (1) What was the value of the vehicle in Mr. Balasooriyan’s possession? (2) Did Mr. Balasooriyan know that the vehicle was stolen? (3) Was Mr. Balasooriyan attempting to abduct A.K-M. or simply talking to her at the park? (4) Was Mr. Balasooriyan wilfully obstructing, interrupting or interfering with A.K-M’s lawful use or enjoyment of the public park by speaking to her? (5) Was Mr. Balasooriyan criminally harassing A. K-M. by speaking to her at the public park?

What Was the Value of the 2010 Honda Accord?

6Karandeep Singh was the lawful owner of the vehicle. He testified that he had purchased the vehicle in 2021 for an amount close to $6000, from someone on Facebook Marketplace.

7Mr. Singh drove the vehicle from Manitoba to Ontario in September 2023. The vehicle had Manitoba license plates attached and Ontario license plates in the trunk.

8On September 9, 2023, he took the vehicle to his local mechanic for repair to the muffler. On September 11, 2023, the mechanic called him to report that the vehicle had been stolen from the shop.

9The co-owner / mechanic of the auto shop testified that he had worked on the vehicle both before and after Mr. Singh owned it. He said that the vehicle was in good condition and well maintained.

10On September 11, 2023, after working on the vehicle, he parked the car outside, running, with the keys in the ignition. This was a routine exercise post repair. He observed a man walk up and speak with his shop partner. At trial, he identified this man as Mr. Balasooriyan. He was sitting in the office of the shop, straight across from the parked and running vehicle. The shop door was open to the outside. He observed Mr. Balasooriyan get into the vehicle and drive away.

11Security footage from the shop shows the parked and running vehicle approximately 15-20 feet from the shop door. A man can be seen loitering around the vehicles parked in the shop lot. He moves closer to the 2010 Honda Accord. He stops, looks around, starts to walk away and then quickly returns. He boldly walks to the front of the vehicle and then quickly enters the driver door and speeds off the lot and out of frame.

12The person is male, brown skinned and has dark hair. He is wearing shorts, a t-shirt and backpack.

13The shop owner testified that the male was 40-45 years of age and had blackish hair. He said that he could not see the person in the video very well, but he did not look like Mr. Balasooriyan. At trial, sitting in the prisoner’s dock, Mr. Balasooriyan had silver hair and a silver beard. Photographs taken by police at the time of his arrest, show Mr. Balasooriyan with dark hair and a short, silver beard.

[14] The shop owner gave non-expert opinion evidence as to the value of the vehicle. He has been a mechanic since 2011. He testified the value of the 2010 Honda Accord was between $8000-$9000. His estimate was based on: (1) The vehicle make and model. (2) The vehicle was well maintained and in good condition. (3) His experience working on other Honda Accords. (4) His experience completing ‘safety’s’ on other vehicles, in the sale process, often communicating with both the seller and buyer pre and post sale. (5) His experience dealing with 50-60 cars each workday.

15Both the shop owner and the vehicle owner were credible and reliable. Neither was shaken on cross. The shop owner’s evidence was solidly founded in his many years of experience. I find that the vehicle had a value of at least $5000.

Did Mr. Balasooriyan Know That the Vehicle Was Stolen?

16Mr. Balasooriyan was arrested, in possession of and driving the stolen vehicle on September 13, 2023. The Ontario plates were attached. The Manitoba plates were found in the trunk.

[17] Items seized from inside the vehicle included: (1) A purple, store-bought container of cannabis found in the center console; (2) A resealable pouch of suspected dried cannabis; (3) Ontario vehicle documents for ownership and plate, identifying Karandeep Singh as the registered owner, with an address in Brampton (where the vehicle had been stolen) located on a passenger seat. (4) Manitoba vehicle insurance documents in the name of Karandeep Singh located on a passenger seat. (5) Ontario Court of Justice Undertaking, in the name Baskaran Balasooriyan, with the address of 4 Tomporowski Trail, Alliston; date of birth 1978/09/06 (same identifiers on this court Information).

18Mr. Singh does not know Mr. Balasooriyan and never leant, rented or gave his vehicle to him.

19Mr. Balasooriyan was stopped and arrested by police on September 13, 2023, two days after the vehicle had been stolen from the shop. Police had located him after attending at 4 Tomporowski Trail, an address given to them by the intended abductee. The address was within a minutes drive from the park.

I. Doctrine of Recent Possession

20In R. v. A.W., 2018 ONCJ 480, Justice Felix summarized the ‘doctrine’ as held by the SCC in R. v. Kowlyk, [1988] 1 S.C.R. 903 (emphasis added):

A. The "Doctrine"

10 During submissions both counsel relied upon the "notorious doctrine of recent possession" outlined by the Supreme Court of Canada in R. v. Kowlyk, [1988] 1 S.C.R. 903 [ Kowlyk ] . Counsel relied upon this case in submissions on the issue.

11 In Kowlyk, at paragraphs 4, 7, and 12, the Court explained what the so-called "doctrine" of recent possession involved:

4 Before going further, it will be worthwhile to recognize what is involved in the so-called doctrine of recent possession. It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it be properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it. Laskin J. (as he then was) (Hall J. concurring) in a concurring judgment in R. v. Graham, supra, said at p. 215: The use of the term "presumption", which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is "inference". In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused. He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre-trial explanation of such possession were given by the accused and if it possessed that degree of contemporaneity making evidence of it admissible, no adverse inference could be drawn on the basis of the recent possession alone if the explanation were one which could reasonably be true. Implicit in Laskin J.'s words that recent possession alone will not justify an inference of guilt, where a contemporaneous explanation has been offered, is the proposition that in the absence of such explanation recent possession alone is quite sufficient to raise a factual inference of theft.

7 On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.

12 In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may — but not must — draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.

12 The Court held that recent possession of unlawfully obtained property by a defendant may provide a strong circumstantial inference linking the defendant to the acts associated with the item having been taken.

13 The Court explained that this is not legal doctrine, conclusive proof, presumptive proof, or a mandatory inference, but simply a permissive inference available to the trier of fact.

14 The permissive inference relies on an analysis of the totality of all of the circumstances including the recency of the possession and any explanation provided by the defendant.

B. Recency of Possession

16 As first explained in an old English case R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850 (Eng. C.P.) relied upon by the Supreme Court of Canada in Kowlyk at paragraph 2: The principle is this, that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, a jury are justified in coming to the conclusion that he committed the robbery.

And so it is of any crime to which the robbery was incident, or with which it was connected, as burglary, arson, or murder. For, if the possession be evidence that the person committed the robbery, and the person who committed the robbery committed the other crime, then it is evidence that the person in whose possession the property is found committed that other crime.

The law is, that if, recently after the commission of the crime, a person is found in possession of the stolen goods, that person is called up to account for the possession, that is, to give an explanation of it, which is not unreasonable or improbable.

The strength of the presumption, which arises from such possession, is in pro portion to the shortness of the interval which has elapsed. If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way. And juries can only judge of matters, with reference to their knowledge and experience of the ordinary affairs of life. [Emphasis added]

21Mr. Balasooriyan did not provide police with any “contemporaneous explanation” which might counter or weaken the permissible inference to be drawn. At trial, he did not provide any explanation which might counter or weaken the permissible inference to be drawn.

22I am mindful that Mr. Balasooriyan has the right to remain silent, from the moment of his arrest to the end of his trial. He does not have to provide any information, evidence or explanation, however, without this evidence the court is left only with the permissible inference and an assessment of the reasonableness of that inference.

23The Ontario vehicle ownership documents were in the vehicle.

24I find that the inference to be drawn is strong and conclude that Mr. Balasooriyan knew or was wilfully blind as to whether the vehicle was stolen.

25I am satisfied beyond a reasonable doubt that Mr. Balasooriyan was in possession of stolen property exceeding $5000.

Was Mr. Balasooriyan Attempting to Abduct A. K-M, or Simply Talking to Her at the Park?

26Upon his arrest, Mr. Balasooriyan was searched. In his pants pocket police located the keys to the Honda Accord, a pocketknife, eye drops, tissue, coins and cigarettes.

27Photographs taken by police depict Mr. Balasooriyan with dark hair and a short silver beard. His appearance has changed dramatically while in custody.

28The arresting officer testified that Mr. Balasooriyan both spoke and understood English. There were no indicators of intoxication.

[29] A. K-M. was 13 years old at the time of the trial. Her September 15, 2023, statement to police was tendered as Exhibit #2. The salient points are summarized below: (1) She was at the park splash pad with two friends around 6:30pm. (2) One friend asked her to go to the basketball court at the park. (3) At the basketball court she spoke with another friend. (4) An ‘old man’ asked her if she was trying to “fight with this kid?”, referring to the friend at the court. She said no. He then began to ask her a series of questions. She responded and a conversation ensued. He told her that he plays soccer and was a coach. He told her that he used to live in Toronto but came from Montreal. He is Sri Lankan. He lived in Brampton but now Barrie. He drives 1000 kms a day. (5) One of her friends said that A. K.M. would “look good with that guy”. She said nothing in response. (6) The man said he was Tamil, and that Tamil was his first language. (7) He spoke about this history of mangoes. The kids were laughing. (8) The man yelled at some kids, saying “they can’t hoop .. can’t dunk .. and he could take it from them anytime”. (9) He asked her is she had siblings. She said a brother. He asked if he worked. She said yes. He then asked, “how much does the brother have, or does he smoke weed and stuff”. She said that her brother would never smoke weed and has $5000. The man said he would rob her brother and that she should try to rob her brother. She laughed. (10) One of the kids asked the man to play one on one basketball. He asked the kid if he had any money. When the kid said no, the man said, “so get your broke self out of here”. The kid asked if the man could buy them something, to which the man replied, “I already bought you guys Red Bull”. He gave 5 other kids Red Bull. (11) The man spoke about his sister and how he bought her a house in the area, so he comes here often. He said he had a 13-year-old daughter. He never asked her how old she was. (12) The man spoke with other kids. Some of the kids believed that the man was drunk. She believed he was very drunk. He did not offer anyone alcohol. (13) The man was trying to use slang, not like a 40-year-old man. (14) The man then said, “Okay, I’m going to go”. She said OK and went to another court with her friends. (15) The man came back to her and said “You want to come listen to my music? It’s not Tamil, you won’t understand it”. She said no, “I’m good”. He said, “No just come. Just come. You’ll like the music”. She said, “No. I’m not going to go”. She believed he wanted her to listen to music “in his car”. He had a grey Honda. (16) The man went to his car and blasted his music. He drove off, came back and started blasting his music again. (17) She was scared, very worried and her friends were scared. She called the police. (18) She “knew straight away that , uh, something was obviously going to happen in the car because I’ve heard of those stories, and I’ve had dreams about them. So, I immediately got like the ick”.

[30] At trial A. K-M. testified. The salient points are summarized below: (1) She had gone to the park after school. (2) The man told her three times to come into the car. (3) At trial she was asked to draw a diagram of Treetop Park, where the interaction took place between she and the man. Exhibit #3 shows the layout of the park, where various interactions and conversations took place and of importance has a notation that reads “where my friends where when he asked me to go in his car”. In cross she disagreed that the man had said come TO my car and confirmed that he had said come IN my car. (4) She had never seen the man at the park before. (5) She was scared and did not want to get hurt. (6) When she laughed it was an “uncomfortable laugh”. She also laughed because it was funny. (7) The man said he had two daughters. (8) She told the man three times that she didn’t want to go in his car. (9) He asked her to go into his car. (10) The man wasn’t being mean or forcing her, he was being nice. (11) The man looked drunk, he was sweating, shaky, looked tired, droopy and snoozy. He talked about taking medication. (12) She thought the man would touch her if she went in the car. She was scared. She thought that he was going to sexual assault her.

31A. K-M. was not shaken in cross examination. She was steadfast and I found her to be credible. Her evidence was reliable, and I accept it without question. Her evidence was the only source of what occurred at the park. She was not contradicted by anyone or anything.

The Offence of Abduction of a Person Under 14 Yrs of Age

32Section 281 of the Criminal Code:

Every person who, not being the parent, guardian or person having the lawful care or charge of a person under the age of 14 years, unlawfully takes, entices away, conceals, detains, receives or harbours that person with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction.

33As per R. v. Chartrand, [1994] 2 S.C.R. 864, the Crown must prove beyond a reasonable doubt the following elements (para 16):

That the accused is not a parent, guardian or person having the lawful care or charge of a person under the age of fourteen years (hereinafter a "child");
The age of the child;
That the accused took, enticed away, concealed, detained, received or harboured the child (hereinafter "took");
That the taking was with intent to deprive a parent or guardian, or any other person who had the lawful care or charge of that person, of the possession of that person.

34It is conceded that Mr. Balasooriyan is not a parent nor had the lawful care of A.K-M.; that she was under the age of 14 years, and that he was the man at the park.

35Chartrand, supra, para. 51, confirms that the parent of A.K-M. does not need to be in physical control of the child at the time of the attempted taking, and that it is not relevant for how long the person intended to take the child:

51 It is clear that "possession" is not limited to circumstances in which the parent or guardian is actually in physical control of the child at the time of the taking. In R. v. Meddoui, [1990] A.J. No. 455 (QL) [ [1990] A.W.L.D. 443 ], affirmed R. v. Meddoui, [1991] 3 S.C.R. 320, a child was playing amongst other children rather than being physically supervised by her guardian when the "enticement" occurred. The trial court concluded, and the appeal court confirmed, that the child had been "in the possession" of her guardian for the purposes of s. 281 of the Criminal Code. Moreover, as the appellant notes, this concept of "deprive ...of the possession", relates to the ability of the parent (guardian, etc.) to exercise his or her right of control over the child and is therefore in keeping with the intent of the legislation to prevent interference with such rights, and with jurisprudence relating to deprivation of possession. (See R. v. Mankletow (1853), 6 Cox C.C. 143 (C.C.R.).)

52 Further, as noted by the Court of Appeal of Alberta in Meddoui, the intended deprivation of possession of a child need only be for a very short period of time and need not be an attempt at permanent removal. Affirming this decision, Sopinka J., for the court, in brief oral reasons from the bench, adopted the reasons of the Alberta Court of Appeal where the appellate court concluded as follows: Whether the accused may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point.

36With respect to the mens rea or “with intent to”, Chartrand, supra, is again dispositive:

54 General principles of mens rea apply to the words "with intent to", and, accordingly, in order to conclude that the mens rea of the offence under s. 281 has been made out, it is sufficient that the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child.

55 In R. v. Buzzanga (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), although in the context of wilful promotion of hatred, Martin J.A. stated at pp. 384-85: I agree ... that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective. [Emphasis added.] This definition of intent was subsequently approved by this court in R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 774-75. Moreover, in R. v. Olan, [1978] 2 S.C.R. 1175, at p. 1182, this court examined the possibility that intent under s. 338 (now s. 380) of the Code may encompass a contemplated outcome distinct from the purpose of the conduct. It adopted the English Court of Appeal's dictum in R. v. Allsop (1976), 64 Cr. App. R. 29 [at p. 31]: Generally, the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is "intended" only in the sense that it is a contemplated outcome of the fraud that is perpetrated.

61 To summarize, although proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parent's control over the child, the main body of jurisprudence and the academic commentaries support the view that the mens rea in offences such as s. 281 of the Code can also be proven by the mere fact of the deprivation of possession of the child from the child's parents (guardians, etc.) through a taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result of the taking, independently of the purpose or motive for which such taking occurred.

62 The objective of the legislation is simple, as it is both preventative as regards future harm, and reactive as to the act of immediate wrongful interference with custodial rights. In this light, and with the purpose of the section in mind, the intent requirement of s. 281 of the Code must be interpreted so that if a child is in a park or on the street with the knowledge or consent of the parents (guardians, etc.), and therefore, within the parents' (guardians', etc.) realm of control and possession and is taken, it will be rare indeed that the deprivation of possession of the child from the parents (guardians, etc.) was not the intent of the impugned act. This is ultimately, however, a matter of inference for the trier of fact. In the end, if the purpose of the section is to be achieved, foresight of the certainty or near certainty of the end result must be sufficient.

37As per R. v. Holtorf, 2023 ONSC 6569, paras. 135-136:

135The Criminal Code does not contain the offence of “attempt abduction.” Attempts have been described as “incohate” crimes. “Incohate” denotes something that is in its early, not fully formed, stage.

136In R. v. Root, 2008 ONCA 869, [2008] O.J. No. 5214, at paras. 92-100, Watt J.A. set out the concept of an “attempt”:

[92] Section 24 of the Criminal Code instructs that an attempt to commit an offence consists of two elements: i. the intent to commit the offence; and ii. conduct, which is more than merely preparatory acts or omissions, for the purpose of carrying out the intention to commit the offence. Attempts are preliminary or inchoate crimes. That it is not possible to commit the substantive offence attempted is of no legal moment. Dynar at para. 49; Criminal Code, s. 24(1).

93Under s. 24(2) of the Criminal Code, whether conduct by a person who intends to commit a crime is mere preparation or has progressed beyond it to constitute the actus reus of an attempt is a question of law. Designation of a judge’s decision to characterize an accused’s conduct as mere preparation or the actus reus of an attempt as a question of law is of particular importance in cases like this where the appellant’s right of appeal is restricted to questions of law alone.

94In every case of an attempt to commit an offence, the mens rea of the substantive offence will be present and complete. In every attempt, what is incomplete is the actus reus of the substantive offence. But incompleteness of the actus reus of the substantive offence will not bar a conviction of attempt, provided the actus reus is present in an incomplete, but more than preparatory way. Dynar at paras. 73 and 74.

95The actus reus may be but does not have to be a crime, tort or even a moral wrong. R. v. Cline, [1956] O.R. 539 (C.A.).

96The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other. We leave the determination of where on the continuum the conduct lies to the common sense judgment of trial judges. R. v. Deutsch, [1986] 2 S.C.R. 2 at pp. 22-23.

97The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality of the act said to constitute the attempt and the nature of the substantive offence attempted in its complete form. Deutsch at p. 23.

98To determine on which side of the preparation/attempt divide an accused’s conduct falls, a trial judge should consider the relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished. Deutsch at p. 23.

99Relative proximity may give an act, which might otherwise seem to be mere preparation, the quality of an attempt. Deutsch at p. 26; R. v. Henderson, [1948] S.C.R. 226 at p. 245. Further, an act on its face an act of commission does not lose its quality as the actus reus of an attempt simply because further acts are required, or because a significant period of time may elapse before the completion of the substantive offence. Henderson at p. 244; Deutsch at p. 26.

100To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantive offence. To constitute the actus reus of an attempt, an act must be sufficiently proximate to the intended crime to amount to more than mere preparation to commit it. This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path. Williams, Criminal Law (The General Part), at p. 625. An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime.

38In R. v. Marini, 2014 BCPC 3, para. 36, the court outline the definition of ‘entice’ as follows:

36 The Oxford English Dictionary defines the verb entice as meaning to "attract or tempt by offering pleasure or advantage." Black's Law Dictionary includes in the definition of entice, to "solicit, persuade, procure, allure, attract...; to lure, induce, tempt, incite or persuade a person to do a thing." It defines the enticement of a child as "inviting, persuading or attempting to persuade a child to enter any vehicle, building, room or secluded place". I am also mindful of the purpose of section 281, which is to protect children and the word "entice" must be considered within that context. On any reasonable definition of the word "entice", I find that, by asking the child at least three times to leave the library in return for a promise to buy the child new shoes, the Accused was enticing the child to leave the library. In doing so, the Accused performed one or more steps towards a completed offence, that being enticing the child away, as contemplated in section 281 of the Criminal Code.

39I find that Mr. Balasooriyan was not merely talking to her, but rather attempting to ingratiate himself, to garner her trust in him. Among other things, he told her he had daughters, one her age. He told her that he was a soccer coach. He told her that he lived in the area, thus was a neighbour.

40Mr. Balasooriyan asked A. K-M. three times to go into his car and listen to music. I find that this was an enticement to lure her away from her friends, the park and into his control within the vehicle.

41I find that he did so with the intention to deprive her parents, for however long, of their ability to exercise control over and possession of their child.

42I am satisfied that the Crown has proven beyond a reasonable doubt of the elements of the offence of attempted abduction.

Was Mr. Balasooriyan Wilfully Obstructing, Interrupting or Interfering with A.K-M’s Lawful Use or Enjoyment of the Public Park by Speaking to Her?

43Section 430(1) of the Criminal Code:

430(1) Mischief Every one commits mischief who wilfully (a) destroys or damages property; (b) renders property dangerous, useless, inoperative or ineffective; (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

44Mr. Balasooriyan is charged under s.430(1)(c).

45 R. v. Thies, 2014 CM 3006 is assistive:

66 The essential elements of the offence of mischief are: (a) the identity of the accused as the offender; (b) the date and place of the offence; (c) the accused did interfere with property; (d) the conduct of the accused was unlawful; and (e) the conduct of the accused was wilful.

67 The question on having the accused interfere with property has to do with the accused conduct towards property or towards a person who are lawfully using, enjoying or operating property. By "property" we mean, land, buildings, and things or objects that we can see and touch.

68 There are several ways in which one person may interfere with another person's property. The prosecution does not have to prove every kind of interference for which the law provides. Any one is enough, it does not matter which one.

69 To interfere with property includes destroying or damaging property as well as rendering the property useless, inoperative or ineffective. The person also interferes with property if he obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property, or any person who is lawfully using, enjoying or operating the property even if he is not an owner of it.

70 Enjoyment of property is not limited to simply having or being in possession of it, but includes being present on property to participate in other activities there. In other words, enjoyment refers to exercising a right, not the subjective enjoyment of property.

71 The issue about the unlawful conduct of the accused has to do with the nature of his conduct. The prosecution must prove beyond a reasonable doubt that the accused conduct, his interference with property or with persons lawfully using, enjoying or operating property, was unlawful.

46I find that Mr. Balasooriyan’s conduct interfered with A. K-M’s lawful enjoyment of the park. Her time there, at a public park, post the school day, was interrupted by his attendance and interaction with her. She was distracted from her play. She was made to feel scared, to be afraid. She was both interfered with and interrupted.

47I am satisfied beyond a reasonable doubt of the elements of the offence of mischief.

Was Mr. Balasooriyan Criminally Harassing A. K-M. by Speaking to Her at the Public Park?

48Section 264 of the Criminal Code:

264(1) Criminal harassment No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

264(2) Prohibited conduct The conduct mentioned in subsection (1) consists of (a) repeatedly following from place to place the other person or anyone known to them; (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (d) engaging in threatening conduct directed at the other person or any member of their family.

49A. K-M. never told Mr. Balasooriyan to leave her alone or gave him any indication that she did not want to speak with him at the park. I cannot conclude from the evidence and circumstances that he knew that he was harassing her.

50Mr. Balasooriyan spoke to her in segments, after she had walked away and after he had left the immediate area. He repeatedly communicated with her.

51His conduct caused her to reasonably, in all the circumstances, fear for her safety.

52As the adult in the situation, I find that he should have known that she would be harassed and was reckless or wilfully blind to that consideration.

53As per [R. v. Kosikar, 1999 CarswellOnt 2955], a single incident of harassment is sufficient to ground a conviction. Moreover,

22 Nor can it be said that the threatening conduct must itself be harassment and therefore repetitious. Section 264 simply requires that the threatening conduct cause the complainant to be harassed. The threatening conduct can be constituted by a single act provided it carries as a consequence that the complainant is in a state of being harassed. Proulx J.A. put it this way in Lamontagne, supra, at p. 188: Because of the distinction which Parliament made between the prohibited conduct within the meaning of s-s. (2) and the harassment as the ultimate consequence of the conduct, one cannot just equate the two, which thereby creates the necessity, as I previously pointed out, to consider the definition of the state of being "harassed", independently from the prohibited conduct which may cause this state and which is expressly provided for in s-s. (2).

23 Proulx J.A. also provided valuable assistance in giving meaning to this element of the actus reus, namely that the complainant be in a state of being harassed as a consequence of the prohibited conduct. At p. 186, supra, he said this: The second element of the actus reus, that is that the complainant was harassed, appears even more clear in the English version of the text which requires knowledge that the victim "is harassed", whereas the French version refers to knowledge that the complainant "feels harassed".

24 He went on at p. 188, supra: "Harassment" was not defined by Parliament in s. 264. In Ryback and Sillipp, supra, the courts agree to give this word a contextual interpretation. These cases point out that it is not sufficient that the complainant be "vexed, disquieted or annoyed", rather it must be demonstrated that the prohibited conduct "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered".

25 Hence, I think this element of the offence requires the Crown to prove that as a consequence of the prohibited act the complainant was in a state of being harassed or felt harassed in the sense of feeling "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". The statute says nothing that would preclude a single threatening act from producing this consequence. In other words, while being in a harassed state involves a sense of being subject to ongoing torment, a single incident in the right context can surely cause this feeling.

54The Crown has proven beyond a reasonable doubt each of the elements of the offence of criminal harassment.

Conclusion

55Convictions will register on each of the four counts charged.

Released: September 25, 2024. Signed: Justice Angela L. McLeod

R. v. Balasooriyan, 2024 ONCJ 478

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