Court File and Parties
Court File No.: CR-23-3-721 Date: 2024-09-09
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING - and - SAJEETH VIJAYAKUMARAN
Counsel: Brad Ververs, for the Crown Allan Lobel and Hubert Gonzalez, for the accused
Heard: July 15-18, 2024
K.L. Campbell J.:
Reasons for Judgment
I Overview
[1] The accused, Sajeeth Vijayakumaran, currently faces a six-count indictment that charges him with: (1) the unlawful possession of a restricted firearm, namely a handgun, together with readily accessible ammunition, without being the holder of the requisite authorization, license, or registration certificate, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, chap. C-46; (2) the unlawful possession of a restricted handgun, while knowingly not the holder of the requisite license or registration certificate, contrary to s. 92(1) of the Criminal Code; (3) the unlawful possession of a prohibited magazine, while knowingly not the holder of the requisite license, contrary to s. 92(2) of the Criminal Code; (4) threatening to cause bodily harm to Kirushika Anandaraja, contrary to s. 264.1(1)(a) of the Criminal Code; (5) threatening to cause bodily harm to Nishok Anandaraja, contrary to s. 264.1(1)(a) of the Criminal Code; and (6) threatening to cause bodily harm to Ponrani Praisoodi, contrary to s. 264.1(1)(a) of the Criminal Code. All of these offences are alleged to have been committed by the accused in the City of Toronto, in the Toronto Region, or about July 2, 2021.
[2] The case against the accused is, essentially, as follows. The Crown contends that, in the summer of 2021, the accused and the main complainant, Kirushika Anandaraja, were involved together in a romantic relationship. The Crown contends that the accused unlawfully possessed a loaded handgun, that he kept in a small, locked, metal, storage container that was designed to look like a “book.” As the complainant testified, during the course of their relationship, the accused showed this firearm to her a number of times. The Crown contends that, on Canada Day in 2021, the accused and the complainant became embroiled in a heated argument, during which the accused threatened to shoot her, her grandmother (Nishok Anandaraja) and her brother (Ponrani Praisoodi). Later, when the complainant got home and was no longer in the company of the accused, she contacted the police and told them about the threats to her and her family, and told them about the handgun in the home of the accused, where he lived with his parents. Based upon this information, the police obtained a search warrant for the accused’s residence and, when it was executed the following day, the police found and seized: (1) a SAR B6P 9 millimeter semi-automatic handgun and a detachable box magazine cartridge, capable of holding more than 10 rounds of 9 millimeter ammunition, but which, in fact, contained just two cartridges of 9 millimeter, centre-fire, ammunition – which the police found next to each other in a rubber basket covered with clothes, in the closet connected to the primary bedroom of the residence; and (2) an empty metal box, locked with a combination lock, but which appeared to be a “book” entitled “New English Dictionary” – which the police found, by itself, in the blue recycling bin, outside, next to the side door of the residence.
[3] The defence argued that the complainant was an incredible and unreliable witness, who faced many of her own criminal charges, and that her testimony should be rejected. The defence also argued that the accused did not, in fact, make any of these alleged threats, nor did he possess the restricted firearm, nor the ammunition found in the nearby prohibited device that the police found in his parent’s bedroom closet. Moreover, the defence argued that the Crown had failed to prove any of the alleged charges beyond a reasonable doubt.
II The Presumption of Innocence and the Burden of Proof on the Crown
[4] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See: R. v. Dubois, [1985] 2 S.C.R. 350, 22 C.C.C. (3d) 513, at p. 357; R. v. Pearson, [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 682-683, 687.
[5] It is also important to recall the nature of the heavy burden of proof on the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also: R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.
III The Testimonial Silence of the Accused
[6] Of course, an accused need not testify in his or her defence and, if the accused elects to remain silent in the face of the criminal allegations, as the accused elected to do in the present case, no adverse inference can be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s testimonial silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, [1997] 1 S.C.R. 874, 114 C.C.C. (3d) 385, at para. 72; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 97-98; R. v. Caron, 2014 BCCA 111, [2014] B.C.J. No. 492, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, [2012] O.J. No. 5817, at paras. 91-92.
IV The Basic Testimony of the Complainant
[7] The complainant, Kirushika Anandaraja, testified that was 27 years old, and worked at a physiotherapy clinic. She agreed that she presently faces a number of outstanding criminal charges, including theft and public mischief. She explained that she dated the accused, romantically, for approximately two years, starting sometime in 2019. She testified that she knew the other members of the accused’s family, and had been to his home many times.
[8] Ms. Anandaraja testified that she had seen the accused with a dark grey or black handgun on at least two occasions, probably a couple of weeks before she called the police. This happened once when they were alone together in his bedroom, and once when they were alone together in his car. The accused just held the firearm – she never touched it – and he kept it in a locked box that looked like a “book.” She explained that the accused “moved it around” in their house, but kept it in the metal box that was locked with a “code.” The complainant recognized the photographs of the lockbox, when those photographs were taken by the police when the lockbox was found in the recycling bin. Ms. Anandaraja testified that she never saw anyone else with that handgun.
[9] Ms. Anandaraja testified that the “incident” that led to her call to the police took place on “Canada Day” in 2021. According to the complainant, she and the accused became engaged in an argument that day, during which the accused threatened her, and indicated that he was also going to shoot members of her family, including her grandmother and her brother. These threats started just before they stopped at a gas station, but they led her to contact the police. When the police subsequently appeared, however, she assured them that “everything was fine.” However, the complainant testified that, when the police left the scene, the accused continued to make these serious threats to her and her family.
[10] The complainant testified that, at the time the accused was making these threats to her and her family, she was very concerned about these threats as she knew that the accused had a gun. Indeed, she had seen him in possession of a handgun relatively recently.
V The Execution of the Search Warrant
[11] The police attended at the Toronto premises occupied by the accused, his brother, and their two parents on July 2, 2021, with a search warrant. As I have indicated, during the course of their execution of the search warrant, the police located and seized a handgun, a magazine with some ammunition for the handgun, and a lockbox that looked like a “book.” More particularly, the police discovered and seized the following:
(1) a SAR B6P 9 millimeter, semi-automatic handgun and a detachable box magazine cartridge, capable of holding some 15 rounds of 9 millimeter ammunition, but which, in fact, contained just two cartridges of 9 millimeter, centre-fire, ammunition. The police found these items next to each other in a clear, rubber basket covered with clothes, in the closet attached to the primary bedroom of the residence, which was obviously occupied by the accused’s parents; and
(2) an empty metal box, locked with a three-digit combination lock, but which appeared to be a “book” entitled “New English Dictionary.” The police found this item, by itself, in a blue recycling bin, outside, just a few steps from the side door of the residence. When the police forced open the lock box it was empty, but it appeared to be large enough to contain the handgun that the police found in the closet of the primary bedroom.
[12] The police were not able to learn, specifically, how these various seized items came to be in the location in which they were found by the police.
[13] The police were able to locate and search the bedroom occupied by the accused, but they found nothing in that location. The police were, however, able to conclude that the bedroom belonged to the accused as they found his identification in a wallet on the desk in the bedroom, and they located other items that appeared to belong to the accused, including his clothes.
VI Analysis
a. Threatening Bodily Harm
[14] According to s. 264.1(1)(a) of the Criminal Code, everyone commits an offence if they, in any manner, knowingly utter, convey or cause any person to receive a threat “to cause death or bodily harm to any person.” In short, this offence is committed by anyone who: (1) utters or conveys a threat (objectively viewed) to any person; (2) the specific nature of the threat is to cause death or bodily harm to any person; and (3) the accused subjectively intended to threaten or intimidate another person.
[15] The actus reus of the crime is established if a reasonable person, aware of all of the circumstances in which the words were uttered or conveyed, would have perceived them to be a threat of death or bodily harm. The Crown need not prove, however, that the intended recipient of the threat was made aware of it, or (if aware of it) that the intended recipient of the threat was intimidated by it or took it seriously. Further, the threatening words need not be directed toward any specific person. Rather, the actus reus of the offence is established if the threat is made against an ascertained group of people. The mens rea of the crime is made out if the accused subjectively intended the threatening words to intimidate or to be taken seriously. In other words, it is not necessary for the Crown to prove an intent that the words be conveyed to the subject of the threat, or that the accused intended to carry out the threat. See: R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at paras. 2, 9, 10-29.
b. The Possession Offences – The Handgun, Magazine and Ammunition
[16] According to s. 4(3)(ii) of the Criminal Code, a person has “possession” of something when he has it in his “personal possession,” or knowingly “has it in any place,” whether or not that place is owned or occupied by him, “for the use or benefit of himself or some other person.” See: R. v. Beaver, [1957] S.C.R. 531, 118 C.C.C. 129; R. v. Kocsis (2001), 157 C.C.C. (3d) 564, 146 O.A.C. 383, at paras. 14-24; R. v. Pham (2005), 77 O.R. (3d) 401, 203 C.C.C. (3d) 326 (C.A.), at para. 15; affirmed: [2006] 1 S.C.R. 940, 2006 SCC 26; R. v. Chalk, 2007 ONCA 815, 227 C.C.C. (3d) 141, at paras. 17-19; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16-17; R. v. Tyrell, 2014 ONCA 617, 316 C.C.C. (3d) 257; R. v. Montague-Mitchell, 2018 SKCA 78, 368 C.C.C. (3d) 322; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 44-53.
[17] In R. v. Lights, Watt J.A., delivering the judgment of the Court of Appeal for Ontario, helpfully re-iterated the important elements of “constructive possession,” at para. 47, as follows:
Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused
(i) has knowledge of the character of the thing;
(ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and
(iii) intends to have the thing in the place for the use or benefit of the accused or of another person. [Morelli, at para. 17]
c. Conclusions on the Evidence
[18] Turning, more particularly, to the present case, I observe, at the outset, as defence counsel has pointed out, that there are some obvious credibility issues regarding the testimony of the complainant.
[19] First, given the outstanding criminal charges against her, she may personally be trying to gain favour with the Crown in relation to her own criminal charges, by providing testimony that is helpful to the Crown in relation to the prosecution of the accused. There is no clear evidence that the complainant is testifying in this way, for this reason, but this certainly remains a possibility. See, for example: R. v. Titus, [1983] 1 S.C.R. 259, 2 C.C.C. (3d) 321, at pp. 262-264.
[20] Second, the complainant has made a number of clear testimonial assertions that, if true, would substantially support and corroborate her testimony. However, this allegedly supportive evidence (assuming it existed) was simply not adduced by the Crown (or by the defence for that matter). For example, the complainant testified that the threats made by the accused were made in front of her cousin, but her cousin was not called as a witness to explain how these alleged threats were uttered by the accused. By way of another example, the complainant testified that when she was later in the presence of the police, she received text messages from the accused that confirmed her version of events, and that she showed these text messages to the police investigators. However, the Crown did not lead any evidence of these alleged text messages from the accused. The absence of this alleged evidence certainly does not support the evidentiary position advanced by the complainant.
[21] Third, the complainant clearly lied to the police (on her own version of the events, and as she admitted in her evidence) when the police first arrived on the scene to provide her with assistance, after the accused allegedly began making his threats to her and her family. The complainant simply told the police that everything was “fine” or “okay,” when it was not. The complainant agreed that she misled the police in this regard.
[22] These three points collectively suggest that aspects of the complainant’s evidence may not be credible or reliable. In any event, in the result, I am reluctant to accept her testimony where it is not significantly corroborated by other evidence. Of course, all of the “threatening” charges turn entirely upon my acceptance of her uncorroborated testimony. As her evidence does not, by itself, convince me beyond a reasonable doubt as to the alleged guilt of the accused for any of these offences of “threatening,” the accused must be acquitted on all of those charges.
[23] Let me be clear. The accused may well have threatened the complainant, her grandmother, and her brother, just as the complainant testified. But, I am not satisfied beyond a reasonable doubt that he did. I am satisfied only that he probably did. But, as I have already sought to outline, that is not proof beyond a reasonable doubt. The existence of that reasonable doubt must be resolved in favour of the accused.
[24] Significantly, however, the testimony of the complainant about the accused’s allegedly unlawful possession of the handgun is powerfully corroborated by the fact that the police found both the handgun and its unique lockbox that looked like a “book.” The complainant simply could not have known about the accused’s handgun and the unique lockbox unless she saw them (as she explained in her testimony). I am entirely satisfied that she did. Of course, based on her complaint to the police, about the firearm and its unique lockbox, the following day the police, in the execution of their search warrant, found both items.
[25] In the result, I am convinced, beyond any reasonable doubt, that the complainant saw the accused in personal possession of the handgun and the unique lockbox in which he usually kept the handgun.
[26] I am also satisfied beyond a reasonable doubt that, on the late afternoon of July 1, 2021, the accused and the complainant exchanged words, in some type of heated argument, to the extent that the accused became concerned that the complainant, who he knew had seen him in possession of the handgun and the unique lockbox that looked like a “book,” became concerned that she might tell the police about them (as she did). In the result, the accused personally put his handgun, its magazine and its ammunition, in a large plastic container, and hidden under some clothes, in his parent’s bedroom closet, and he put the unique lockbox in the recycling bin just outside their house.
[27] I am satisfied beyond a reasonable doubt that the accused did this try to distance himself (and thereby insulate himself) from these incriminating items in the event that the complainant contacted the police, and the police attended at his home to search for the firearm. However, I am satisfied beyond any reasonable doubt that the accused still had “constructive possession” of these contraband items, according to s. 4(3)(ii) of the Criminal Code, as he knowingly had them in a place (i.e. the closet of his parent’s bedroom, where he had stored them), for the use or benefit of himself. Having hidden them there, the accused knew exactly what they were, he knew their precise location, and he had full control over them. In other words, the accused knew the character of these things, knowingly put them in this particular location, and intended to have those things in that place for his own use and/or benefit. See: R. v. Lights, at para. 47.
[28] I must also say that I have no hesitation entirely rejecting the notion that, coincidentally, someone else (i.e. perhaps the accused’s parents, or his brother) may have put the accused’s handgun, magazine and ammunition in the parent’s bedroom closet, under the clothes, and put the unique lockbox in the recycling bin (by itself) sometime on July 1-2, 2021, after the verbal hostilities between the complainant and the accused had concluded. Clearly, the unique lockbox had been placed in the recycling bin very recently as it was found there, all by itself, by the police. Any such “coincidence” would be wildly speculative and entirely without any potential evidentiary support. I am compelled to immediately reject this fanciful and purely theoretical conjecture. See: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 18-22, 28, 30, 32-34, 35-42, 50.
[29] Rather, I find as a fact that the accused, after his heated verbal argument with the complainant, tried to hide his handgun, magazine and ammunition, in his parent’s bedroom closet, and distance himself from the unique lockbox that looked like a “book,” by putting it in the recycling bin just outside their house.
[30] Not surprisingly, it was formally admitted that the accused did not have the required license, authorization or registration certificate for the handgun, or the magazine with its ammunition, rendering his possession of them unlawful. I am satisfied of all of these facts beyond any reasonable doubt.
VII Verdict
[31] In conclusion, I am not satisfied beyond a reasonable doubt that the accused is guilty of the three alleged offences of “threatening,” outlined in counts four, five and six of the indictment, so the accused must be acquitted of those three alleged offences.
[32] However, I am satisfied beyond a reasonable doubt of the alleged guilt of the accused with respect to the three “possession” offences, outlined in counts one, two and three of the indictment. Accordingly, the accused will be found guilty of those three offences, namely: (1) being in unlawful possession of a restricted firearm, namely a handgun, together with readily accessible ammunition, without being the holder of the requisite authorization, license, or registration certificate, contrary to s. 95(1) of the Criminal Code; (2) being in unlawful possession of a restricted handgun, while knowingly not the holder of the requisite license or registration certificate, contrary to s. 92(1) of the Criminal Code; and (3) being in unlawful possession of a prohibited magazine, while knowingly not the holder of the requisite license, contrary to s. 92(2) of the Criminal Code.
Kenneth L. Campbell J. Released: September 9, 2024