R. v. Paramasivam

Case Name: R. v. Paramasivam

Between: Regina and Senthuran Paramasivam

Court: Ontario Court of Justice

Judge: P. Kowarsky J.P.

Heard: May 13, 2016

Judgment: May 16, 2016

Counsel:

• Crown Counsel: T. Vogel
• Duty Counsel: C. Skinner

JUDICIAL INTERIM RELEASE HEARING

REASONS FOR JUDGMENT

P. KOWARSKY J.P.

A. INTRODUCTION

[1] At the conclusion of the bail hearing for Mr. Senthuran Paramasivam on Friday, May 13, 2016, I adjourned the matter to today, May 16, 2016 for my decision. These are my Reasons for Judgment.

[2] On March 22, 2016 the accused was released on a recognizance of $2000.00 with respect to the following three criminal charges:

Two counts of assaulting Ginelle Lang on March 21, 2016, and one count of forcible confinement on the same day.

[3] The conditions of that recognizance were, inter alia:

• Reside with his named surety, his uncle, V. Rajalingam;
• Not to contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with Ginelle Lang.
• Not to be within 500 metres of any place where he knows Ginelle Lang to live, work, go to school or frequent except for required court purposes.

B. THE CURRENT CHARGES

[4] The accused is now charged on a five count Information, with the following criminal offences:

1. Failing to comply with the "no contact" condition of his Recognizance on April 29, 2016;
2. Committing robbery with respect to Ginelle Lang on April 29, 2016;
3. Assaulting Ginelle Lang on April 29, 2016;
4. Failing to reside with his surety; and
5. Failing to comply with the "no contact" condition by communicating with the complainant on May 10, 2016.

C. THE ONUS

[5] Pursuant to section 515(6) of the Criminal Code, having regard to the fact that the accused was on Bail in respect of indictable offences at the time that the new indictable charges were laid, the onus is on him to persuade the court that it is not necessary that he be held in pre-trial custody on any of the grounds for detention set out in section 515(10) of the Criminal Code.

[6] The Crown has applied under section 524 of the Criminal Code for an order revoking the accused's bail of March 22, 2016.

[7] By virtue of the Information setting out the new charges, I revoke the Bail which was ordered on March 22, 2016. As I am required to do pursuant to section 770 of the Criminal Code, I ask that the Clerk of the Court endorse the Certificate of Default for my signature. Consequently, the accused appears before me seeking judicial interim release on all 8 charges which he is currently facing.

[8] The reverse onus provisions of the Criminal Code effectively create a rebuttable presumption of pre-trial detention in that the court must order detention unless the accused is able to show cause, on a balance of probabilities, that his pre-trial detention is not justified. There has to be a sound discharge of that burden on the primary, secondary and tertiary grounds.

D. THE ALLEGATIONS

[9] With the consent of Duty Counsel, the Crown Attorney read a police synopsis of the allegations into the record. The accused is 32 years old, a Canadian citizen, single, unemployed and has no dependents. In summary, the allegations against the accused are as follows:

a) After a two-year relationship with the complainant, she told the accused that she wanted to end it.

b) On March 21, 2016, they met at Westwood Mall in Mississauga; she got into his car; he drove to the rear of the mall, and started punching, and head-butting her.

c) She got out of the car and tried to escape but the accused grabbed her and pulled her back into the car.

d) Witnesses observed the assault and called 911; the police arrested the accused, and charged him with the three criminal offences which I have outlined.

e) The complainant suffered injuries as a result of the assault.

f) The accused was released on a $2000.00 surety bail with conditions including those which I have outlined. The accused's uncle, V. Rajalingam, was named surety, and the accused was ordered to live with his uncle at 75 Major Oak Terrace in Scarborough.

g) On April 29, 2016, the accused and the complainant were in a hotel room where they had apparently been staying for several weeks.

h) While residing there, the accused is alleged to have choked and punched the complainant, and spat towards her. She screamed for help, and the accused fled.

i) The complainant suffered injuries resulting from the assaults.

j) The police went to the home of Mr. Rajalingam who informed them that after the accused's release on March 22, 2016, he did not live with him nor did he know where the accused was living or even where he was at that time.

k) The accused was subsequently arrested, and charged with the 5 charges which I have already outlined.

E. THE CROWN'S CONCERNS

[10] The Crown advised the court that her concerns were on the secondary ground. Section 515(10)(b) of the Criminal Code, known as the secondary ground, provides as follows:

"For the purposes of this section, the detention of an accused in custody is justified only...where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice."

[11] In R. v. Morales (1992), 17 C.R. (4th) 74, Chief Justice Lamer, as he then was, speaking for the Supreme Court of Canada, expressed the difficulty of evaluating "substantial likelihood" within the meaning of Section 515(10)(b) of the Criminal Code, as follows:

"While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated."

F. THE APPARENT STRENGTH OF THE CROWN'S CASE

[12] The complainant provided statements to the police with respect to the charges against the accused. Witnesses will likely be able to testify and corroborate the complainant's evidence as to the assaults which allegedly occurred on March 21, 2016 at the Westwood Mall.

[13] The accused's uncle provided information to the police with respect to the accused's alleged breach of the residential condition of his bail.

[14] At this stage of the proceedings, I find that the Crown's case against the accused appears to be rooted in a very strong evidentiary foundation.

G. THE ACCUSED'S HISTORY OF INVOLVEMENT WITH CRIME

[15] The accused's Criminal record, which he admitted for the purpose of the Bail Hearing, was submitted to the court, and I admitted it into evidence, marked Exhibit #1.

[16] Senthuran Paramasivam's contact with the criminal justice system began prior to 2004 when he was about 20 years old. He was charged with Dangerous Operation of a Motor Vehicle and Public Mischief. On May 27, 2004, he was convicted of those two offences. The disposition was a fine of $1200.00, a Driving Prohibition for 1 year, a suspended sentence and a one-year probation order on the Public Mischief conviction.

[17] Between 2004 and 2013, the accused amassed a Criminal Record containing 22 convictions including 8 convictions for failing to comply with recognizance, 1 conviction for failing to comply with probation and 4 convictions for obstructing a Peace Officer.

[18] In September 2008, he was convicted of Robbery, Dangerous Operation of a Motor Vehicle, Possession of Property Obtained by Crime, Possession of a weapon and Obstructing a Peace Officer. He was sentenced to 3 periods of incarceration of 2 years less a day each, to be served concurrently plus Probation for 2 years and a Driving Prohibition for 3 years.

[19] In addition, his Record reflects that he received a total of 249 days in custody for various crimes over the years.

[20] His two convictions for Dangerous Operation of a Motor Vehicle were entered in 2004 and 2008. In 2013, he was convicted of Driving with more than 80 milligrams of Alcohol in 100 milliliters of Blood.

H. THE LAW

[21] Section 11(d) of the Charter of Rights and Freedoms establishes the bedrock of our criminal justice system as follows:

"Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

[22] Section 11(e) of the Charter enshrines an accused's constitutional right:

"not to be denied reasonable bail without just cause."

[23] And section 7 of the Charter accords to an accused the right not to be deprived of his liberty or security:

"except in accordance with the principles of fundamental justice."

[24] Moreover, our jurisprudence abounds with case law with respect to these rights so that:

• Imprisonment prior to trial should be the last resort.
• Pre-trial detention is extra-ordinary in our system of criminal justice.
• There are no categories of offences for which bail is not a possibility.
• Bail will be denied only in a narrow set of circumstances.

[25] Therefore, it is not the role of the Bail Court Justice to determine guilt or innocence or to punish the accused for the offences which he is alleged to have committed. Rather, it is the task of the Bail Justice to determine whether conditions of release can be crafted so as to reduce the risks envisaged in section 515 of the Criminal Code to an acceptable level.

[26] Since the onus of persuasion is reversed in this case, I must determine whether there is a strong enough plan of release to satisfy me, on a balance of probabilities, that the accused will come to court as required, that he will not commit another offence which would endanger the welfare and safety of any member of the community, and that his release would not bring the administration of justice into disrepute.

[27] I agree with the Crown Attorney that the concerns are on the secondary ground. Consequently, the accused need not endeavour to satisfy me on the primary or the tertiary grounds that he should be released.

I. THE EVIDENCE OF THE PROPOSED SURETY

[28] Duty Counsel called the accused's father, Nadarajah Paramasivam, as the proposed surety for the accused. He gave his evidence with the assistance of the Tamil Interpreter. His testimony may be summarized as follows:

a) He is a 63-year-old Canadian citizen who came to Canada in 1997. He lives in a house located at 15 Autumnglen Road in Markham, Ontario, with his wife, who is the accused's mother.

b) He owns that house, and has equity of about $100,000.00 therein.

c) He has no Criminal Record nor is he facing any criminal charges. He is not a surety for anyone now nor has he ever been a surety for anyone in the past.

d) Until 9 months ago when he was laid off, he worked as a heavy-duty machine operator, and is now living on employment insurance. He plans to start his own construction business, and expects that the accused will help him.

e) Senthuran is their only son, and there are no siblings. Senthuran has no mental health or anger management problems. In fact, he has never seen his son being angry. He is quiet and calm, and has lived with him and his wife all of his life, except on occasions when he lived with his uncle who is his wife's sister's husband.

f) Prior to this Bail Hearing he never knew that his son had ever been in trouble with the criminal justice system.

g) He has always been the breadwinner, and his wife was the one who took sole responsibility for raising their son.

h) Even during the period of almost two years, while his son was in jail (about which he only found out during this hearing) he had no direct contact of any kind with his son. His wife would tell him that their son was away in various places such as Vancouver or Montreal. She never told him what their son was doing in any of those places, nor did he ask her.

i) Sometime in 2010 when the accused abruptly returned home, he did ask his son where he had been and what he had been doing. The accused responded by telling his father: "Daddy, I was doing some business." Strangely enough, the father did not ask his son what kind of business he had been doing. There was no discussion whatsoever about why there had been no direct communication between father and son for such a lengthy period of time.

j) Under cross-examination he said that since March of this year, even though he knew nothing about the charges that his son was facing, he had been seeing his son two or three times a week. However, he testified that "I had no idea until today that he had a criminal record at all" nor that he had ever spent any time in jail.

k) When the accused was charged with the offences in March of this year, he knew nothing about it. He did not know that his son had been released on a $2000.00 surety bail, and that the court had ordered his son to live with his uncle who was the named surety.

l) He has never met the complainant nor did he know that his son had been in a relationship with her for some time. He found out in court at this hearing that the complainant had informed the police that the accused was addicted to methamphetamine.

m) Now that he finally knows about his son's lengthy Criminal Record and the charges that he is facing, he will take an active role in supervising his son 24 hours a day. The accused will reside with him and his wife. He will pledge $2000.00 to secure the release of his son, who will be under house arrest except in his presence or perhaps also in the presence of his wife.

n) He understands that the accused "keeps breaching all the conditions." But he will report to the police any breach of new bail conditions by the accused.

J. THE ADEQUACY OF THE PLAN OF SUPERVISION

[29] To put it mildly, I am intrigued by the evidence of Mr. Paramasivam that essentially he played no part whatsoever in raising, educating, disciplining or guiding his only son for the entire 32 years of his son's life. The entire responsibility of parenting was left to the accused's mother. Even though the father was the sole breadwinner, to have lived his life for the past 12 years without having any idea at all that his son was seriously involved in the criminal justice system, that he had been convicted of some 22 criminal offences and that he had spent a considerable amount of time behind bars at different times over that period is inconceivable. Of course, because the father had no knowledge of his son's criminal behaviour, he had never signed bail for him notwithstanding that his son had been released on bail on multiple occasions.

[30] Frankly, I find it unimaginable that a father with whom his son lived all these years apparently had no involvement in his son's life whatsoever.

[31] Previously, says the father, his roll was simply as the father, and the raising of his son was completely left to the mother. However, now that he knows about all this, in his capacity as a surety, he will take an active roll in supervising his son.

[32] In R. v. Cornel, [2011] O.J. No. 6262 (Ont. S.C.) the court said the following in assessing the reliability of a proposed surety, at paragraph 33:

"Usually the motive the court sees for acting as a surety is based on recognizable indicia of considerable attachment or regard for the applicant. This exists in situations of parental or other familial relationships…."

[33] And at paragraph 35 the court made the following poignant comments:

"In my view, someone with a limited personal relationship or other logical underpinning to undertake the onerous task of monitoring Mr. Cornel to the extent required by the Court would not have the earmarks of a serious and reliable surety, unless there was probative evidence tending to support the character of the proposed surety as one who has a history outside of being a surety who engages in generous or altruistic acts towards persons of limited acquaintance."

[34] I am persuaded on a balance of probabilities that although the proposed surety is the accused's father, there are no "recognizable indicia of considerable attachment" between father and son. The father's testimony appeared to be honest and forthright. Yet, in contrast to being close and personal, the father has little intimate knowledge of his son's lifestyle, occupation, activities or even his whereabouts. The evidence suggests that the father does not stand in a relationship with the accused that would attract the accused's respect.

[35] In assessing the reliability of the plan of release, all of the circumstances must be considered in totality.

[36] Over a period of some 12 years, the accused has demonstrated a troubling lack of consideration or respect for the law, for the rights of others, for court orders and for his parents. His numerous convictions for breaching court orders portends a substantial likelihood of recurrence of such behaviour, and of criminal behaviour that would put the welfare and safety of the community at risk.

[37] In particular, his current charges foretell a disregard for not only the court's orders but especially for the safety of the complainant.

[38] In my view, by virtue also of his antecedents, the proposed plan of release does not satisfy me that he would listen to his father now even while on house arrest, having regard to all the years that the father played no roll in his upbringing whatsoever. I therefore conclude that the plan of release would not provide the level of supervision that is required in all the circumstances of this case.

K. DISPOSITION

[39] I find that the accused has not met his onus on the secondary ground. Accordingly, there will be a Detention Order so that Senthuran Paramasivam will be held in pre-trial custody until he has been dealt with according to law.

P. H. Kowarsky J.P.