R. v. Balasivam
Court File No.: Toronto Region Ontario Court of Justice
Between:
Her Majesty the Queen
P. Fraser, for the Crown
— And —
Mauran Balasivam
V. Sayed, for the accused
FELDMAN J.:
Introduction
[1] Mauran Balasivam entered not guilty pleas to charges of Robbery, Threaten Damage to Property, Threaten Death, Fail to Comply with Probation and Fail to Comply with a Recognizance. It is alleged that he, along with a co-accused, Nisanth Visiththiramoorthy, robbed Pravin Sivarajah of personal property and threatened to kill him. It is also alleged that he was in breach of terms of his probation and of his original release on these charges.
[2] The defence concedes the technical elements of the latter two offences so that no officer is required to prove the necessary documents and their connection to the defendant, in addition to his being required to keep the peace and be of good behaviour. The defence also admits that the accused and co-accused lived together at 3 Meldazy, a residence located beside the scene of the robbery, and that they were arrested there together the next day.
The Evidence
[3] Mr. Visiththiramoorthy pled guilty to robbery and was sentenced to a custodial term. At his plea on November 26, 2013, he told the court that Mr. Balasivam was not his accomplice, but rather, another of his friends, Prakessan Bijarendan, played the central role in the incident.
[4] The complainant is a 20-year old Sri Lankan university student. On September 16, 2013, at about 2 p.m., he was walking home from school on McCowan Rd. near Lawrence Ave. in Scarborough when he was approached by someone who said he recognized him and asked what gang he was affiliated with. Mr. Sivarajah answered he was not in a gang but the man pulled him onto the side of the street where a second person joined them. He had never seen either of them before, but knew they were Tamil.
[5] Mr. Sivarajah told the court that the second man directed him to take out his wallet and hand it over, which he did along with his I-phone. He said both men threatened in Tamil that if he did not submit to their demands, they would hurt him. He co-operated out of fear of being harmed. He was understandably in shock.
[6] He recalls the first man going through the wallet and taking out both his driver's license and debit card. The second man asked for his PIN number, which he provided. That man said he would return the phone. Ultimately, only the wallet was recovered.
[7] After being relieved of his property, the complainant was told to walk away and not look back. He said it was the second man who threatened that if he did so, he would burn his house down. Mr. Sivarajah was aware that his address was on his driver's license.
[8] In a call to 911, Mr. Sivarajah described the first man as Sri Lankan, in his 20s, having a thin build, and wearing a blue long-sleeved shirt and blue hat. At trial, he described the male as Tamil, brown skin, 18-20 years old, 5'7", medium build, 140 lbs., black eyes, short black hair, short cut goatee, wearing a plaid blue and white shirt, blue denim jeans, blue baseball hat, and white running shoes. Months later, in cross-examination, he recalled that the man was 5'7", with a thin build, longer hair than the second man, wearing a blue cap, jeans, white shoes and red shirt. The discrepancies are apparent.
[9] In his 911 call, the complainant described the second man as 5'9", with a medium build, a little older than the first and wearing a plaid shirt. At trial, he described him as Tamil, dark brown skin, 5'8-9", medium build, 150 lbs, black eyes, short goatee, wearing a white half-sleeve shirt with a collar, blue jeans, white running shoes and no hat. In cross-examination, he made reference to this assailant as taller by 2", wearing shorts, grey shoes and possibly a plaid shirt. There are clear discrepancies in these varied descriptions of the second assailant. Of significance, this man admitted his guilt.
[10] Mr. Sivarajah told the court he interacted with these men for about 10 minutes, later conceding it was somewhere between 5-10 minutes. None of the men wore glasses or had face coverings. The complainant said he got a good look at their faces.
[11] The Crown did not provide a physical description of the accused at the time of his arrest two days later.
[12] Mr. Sivarajah participated in a photo lineup the same day. But for the fact that not all photos were of Tamil men, the procedure was conducted fairly. The complainant picked out the accused from the first set of 12 photos shown him, making reference to his face, eyes, facial hair and the fact he was Tamil. In his evidence, he initially described him, erroneously, as the second man.
[13] He identified the co-accused from a second set of photos, indicating that he remembers him vividly because of his facial hair, hair sides, black eyes, nose and facial structure. In error, he referred to Mr. Visiththiramoorthy as the first man who stopped him. He said there were only a few Tamils in the photo array and that they were easy to spot.
[14] P.C. Jennifer Thompson created the two photo lineups. She says she inputs the physical characteristics of a detainee on arrest into a software system that produces photos of individuals with similar skin colour, marks, scars, hair, eye colour, complexion, height, weight, build and age. With regard to Mr. Balasivam, the officer received 30 returns and was satisfied that the twelve she chose bore a fair likeness to him.
[15] Mr. Sivarajah returned to be cross-examined 4 months after completing his examination in chief, as described above. The complainant corrected his previous testimony, he said, after reviewing his statement to the police that morning and without informing anyone of his intention to modify his evidence.
[16] He told the court that it was Mr. Balasivam who first approached him and that he only encountered the co-accused on the side street. He recalls handing over his wallet to the accused and that it was Mr. Visiththiramoorthy who went through it. He says it was Mr. Balasivam who threatened to hurt him if he did not hand over his property. He is sure it was the defendant who warned him not to look back after he was permitted to walk away.
[17] Nisanth Visiththiramoorthy testified for the defence. He told the court it was his friend, Prakessan Bijarendan, not the accused, with whom he committed the robbery. He admitted that the accused lived with him after he and his brother bailed him out of jail. He claimed the defendant was with his brother at the time the offence was committed.
[18] Mr. Visiththiramoorthy pled guilty in 2012 to Theft and Fail to Comply with Recognizance. He denied the mens rea element of the breach offence but could not explain why he pled guilty. He minimized his own role in the robbery to one of an unwitting participant initially unaware of his accomplice's criminal intention and surprised by his aggressive and threatening behaviour. He says he would not have prevented the complainant from leaving. He claims to have been intoxicated at the time.
[19] On any objective basis, this self-serving evidence shifting responsibility away from the witness and the defendant is contrived and unworthy of credit. This is all the more so given that I find on all the evidence that by contrast the complainant's recounting of the events was given in a manner that was understated, sincere, and without animus.
[20] Following his plea and naming of the accomplice, Mr. Visiththiramoorthy received a phone call from a 14 Division officer about it but never called back, he said, because he was busy with his work and probation obligation, an explanation that made no common sense. In fact, he conceded, only in cross-examination, that the officer called him three times. On one occasion, he did not respond; on the second, he agreed to a meeting but failed to show up; and on the third, he told the officer he had decided not to give a statement nor help the police. His initially misleading evidence in this regard and brazen indifference to the police contacting him also bear directly on the seriousness and worth of his accomplice claim.
Positions of the Parties
[21] Mr. Fraser, for the prosecution, submits that the complainant was honest, impartial and sincere. He says he had ample opportunity to see the faces of his assailants. He suggests that the photo line-up procedure was professionally done with photos based on reasonable facial likeness.
[22] In addition, the Crown points out that there is confirmatory circumstantial evidence buttressing the identification of the accused. This includes the fact that the two men he identified in the line-up, including the co-accused who pled guilty to the offence, lived together in a home beside the site of the robbery and were both arrested there two days later.
[23] Mr. Fraser submits that while the complainant was confused about the respective roles of his assailants, he was sure about the identification of the two men involved. As well, he corrected his evidence on his own initiative.
[24] The Crown also submits that the testimony of the co-accused concerning the accomplice should be accorded no weight. He says Mr. Visiththiramoorthy minimized his guilt in the offence, as he did with regard to his criminal record. He suggests his statement that the accused was not involved in the robbery was rooted in his allegiance to his friend and his own pecuniary interest as a surety for his good behaviour. In fact, he says this witness misled the court in examination in chief by suggesting he did not co-operate with the police because of his work and probation responsibilities. I find merit in these submissions.
[25] Ms. Sayed, for the defence, submits that there are too many discrepancies in the complainant's various descriptions of the accused, rendering it unsafe to convict on what she says is unreliable identification evidence weakened further by failure of the police to provide a description of the defendant upon his arrest two days after the robbery.
[26] She submits as well that the complainant's opportunity to observe was limited and that the line-up procedure was flawed because there were only a few Tamil photos from which to choose.
[27] Finally, Ms. Sayed submits that the police were in possession of the name and date of birth of the alleged accomplice and that their failure to follow up, despite the lack of co-operation by the co-accused, leaves them unable to rule out that person as having been involved, in these circumstances raising a reasonable doubt that the accused was properly identified.
The Authorities
[28] The principles to be applied in cases of eyewitness identification are well known. A trial judge must always be mindful of the inherent frailties of this type of evidence when assessing its reliability and needs to scrutinize it closely. It is opinion evidence only. In that regard, there is a very weak line between the confidence level of a witness and the accuracy of his or her evidence: R. v. Lough, 2011 ONCJ 22; R. v. R.B. and R.O., 2010 ONCJ 158.
Conclusion
[29] I am mindful of the frailties inherent in eyewitness identification and recognize that honesty and sincerity do not equate with accuracy. As noted, there were some minor discrepancies in the complainant's otherwise consistent descriptions of the accused and confusion about the roles of the assailants that he corrected on his own initiative. A mistake about clothing where there are more than one assailant or uncertainty about the behaviour of each when the target is subject to traumatic, fast-moving aggression must be assessed in the context of all the evidence and the opportunity that person had to observe the faces of those attacking him.
[30] Mr. Sivarajah testified that his attackers wore no face coverings and that he got a good look at them for 5-10 minutes. He picked both of them out of a photo line-up that day, one conceded to have been conducted fairly, although its value was diminished somewhat by the fact that not all photos were of Tamil males. It is of note that while there were also clear inconsistencies in the complainant's descriptions of the second man, his identification of him in the line-up was correct. The line-up evidence lends some weight to the identification of the accused.
[31] There is, as well, circumstantial evidence tending to enhance the reliability of the identification of the accused. As suggested by the Crown, the accused and co-accused lived together in a residence located beside the scene of the robbery. In addition, aside from his allegiance to his friend, Mr. Visiththiramoorthy, as surety for the defendant, had a pecuniary interest in distancing him from the commission of the offence. As well, they were arrested together two days later at their residence.
[32] In this regard, I am not left in reasonable doubt about the identification by the co-accused's allegation of a different accomplice being involved. As noted earlier, I found his evidence to be contrived, self-serving and unworthy of credit. I reject and would place no weight on his testimony.
[33] Importantly, I am of the view that the complainant's opportunity to observe the accused, unlike in Lough, where the parties were face to face for only 2 seconds, provided him with ample time and proximity to the accused to make an accurate identification. Its weight is in my view enhanced by the results of the line-up procedure and other circumstantial evidence.
[34] On all the evidence, I am satisfied that the Crown has proven the identification of the accused beyond a reasonable doubt. There will be a finding of guilt.
Released: June 10, 2014
Signed: "Justice L. Feldman"