Court File and Parties
Court File No.: Central East - Newmarket 15-06807 Date: 2016-08-11 Ontario Court of Justice
Between: Her Majesty the Queen — and — Thinath Ganendralingam
Before: Justice P.N. Bourque
Counsel:
- J. McIntyre, for the Crown
- G. Pickard, for the defendant, Thinath Ganendralingam
Reasons for Judgment
Released on August 11, 2016
Overview
[1] The defendant had been placed on probation on July 16, 2014 by Harpur J. The probation was to last for 3 years. He is charged with 4 counts of breaching that probation order, as well as possession of a pair of scissors for a purpose dangerous to the public peace.
Agreed Statement of Facts
[2] The following are the important items from the agreed statement of facts:
(i) May 26, 2014, the defendant was placed on probation. The order contained many statutory and other conditions including, that he keep the peace and be of good behaviour, abstain from owning, possessing or carrying any weapon as defined by the Criminal Code, not to associate, contact or communicate with any person known to have a Criminal Code or CDSA record, and to reside where directed by the probation officer;
(ii) The defendant, upon release from custody, was assigned to live at Christian Horizon Group Home in Richmond Hill;
(iii) The defendant signed a document outlining various rules of the group home, and such rules included being under supervision and not leaving the residence unescorted;
(iv) The defendant had his own room in the home;
(v) He stole various items from the home including a pair of scissors which he secreted in a drawer in his bathroom;
(vi) He used his computer to contact some persons who were in jail serving sentences;
(vii) He put various items in a backpack on June 18, 2015 (including the scissors) and fled the group home premises. He went into parks and passed through people's back and front yards; and
(viii) He was arrested later that day.
Videotaped Statement of the Defendant
[3] The defendant was arrested on June 18, 2015 and charged with these offences. He was interviewed by a police officer.
[4] He admitted that he had been sentenced and was living in a group home as part of his probation. He admitted that he was not getting along. He admitted that he had stolen the scissors and had them hidden in a drawer in his bathroom. He admitted that he was unhappy with the staff at the group home. He admitted he was under probation and admitted that there were several rules of the home that he had agreed to.
[5] He was not asked by the police, and did not volunteer why he had the scissors in his back pack. Later in the interview, the officer asked him if he had suicidal thoughts and he said that he did. He described several means by which people committed suicide in jail. He described hurting himself several ways. He stated in response to the officer that he thought of killing some members of the staff. He said that for various reasons he would not act upon those thoughts and did not do so. In response to a question from the officer, he said that he could have used the knife in killing a member of the staff.
Counts 3 and 4 - Breach of Probation: Fail to Reside Where Directed By Probation and Keep the Peace and Be of Good Behaviour
[6] The defence admits that in leaving the group home on June 18, 2015, the defendant was in breach of this condition of his probation. He will be found guilty of Count 3, and Count 4.
Count 5 – Breach of Probation: Communication with Persons Known to Have a Criminal Record
[7] The defendant admitted to communicating with people who were still in and jail and who had recently been in jail. The defence argues that persons in jail could be there under remand and thus the Crown has not proven that the persons he communicated with indeed had criminal records. Unfortunately, the defendant admitted in his interview that he was in breach of that term of his probation. Taking all this into account, this is sufficient evidence upon which to found the conviction under count 5.
Count 1 - Possession of a Weapon Dangerous to the Public Peace
Count 2 - Possession of a Weapon in Breach of his Probation Order
[8] The Crown asserts that because the defendant had scissors in his possession, and because that he had admitted to the police officer that he had sometimes thought of killing a person at the group home, and because he admitted in questioning that he had, sometimes had suicidal thoughts and admitted that if he didn't get to Toronto, he would use the scissors to kill himself, that means that the scissors became a weapon, and it follows that he was in breach of his probation and also in possession of a weapon for a purpose dangerous to the public peace.
[9] Under section 2 of the Criminal Code, a weapon is defined: "as any thing used, designed to be used or intended for use in causing death or injury to any person, or for the purpose of threatening or intimidating any person".
[10] In our case, the object (scissors) is neither designed to be used as a weapon, nor was it used as a weapon. As for the offence listed in Counts 1 and 2, it is the intention of the defendant that is crucial to the Crown.
[11] The Crown must prove beyond a reasonable doubt (for the breach of probation charge) that the defendant possessed these scissors with the intention for the use (on the date of the offence) in causing death or injury to any person, or for threatening or intimidating any person.
[12] For the offence of possession of a weapon for a purpose dangerous to the public peace, the test is quite similar in that because this item is not designed to be used as a weapon and indeed was not, in fact, used as a weapon, then the intention of the defendant as to its proposed use (if any) is a crucial element of the offence. There are subtle differences in the two tests, but clearly if the Crown cannot prove that it is a weapon under section 2, then it could not prove that it is possessed for a purpose dangerous for the public peace.
[13] After examining the scissors, it is clear that while its construction and design are clearly for a benign purpose, they could be handled in such a fashion as to be a "weapon".
[14] The Crown points to the fact that the defendant had the scissors secreted away for a period of time before he left and also that in response to the officer's questioning, he said that he may have to steal to get food to live on the streets in Toronto.
[15] In determining the intention of the defendant, I must look at his stated intention at the time of the offence, that is on June 18, 2015. The evidence does not disclose that on June 18, 2015 he had any stated intention with regard to the pair of scissors. They were merely in his backpack. The officer never asked him why he had the scissors with him. The officer never asked him why he took the scissors in the first place. We don't know. The officer did not ask him why he hid them. We don't know that either. The defendant never volunteered that information. While there is possibly an inference that he was intending to do something bad with these items, there is also an inference that he was hiding them simply because he had stolen them from the home. This is not a preliminary hearing. I can for the purpose of my decision weigh opposing inferences.
[16] The Crown alleges that since the defendant never stated they were for some benign purpose, then that is some evidence that they were there for use as a weapon. I do not accept that reasoning. There is no burden upon the defendant to show a benign purpose. The onus is on the Crown to prove that the purpose of the defendant in possessing the scissors was to use them as a weapon.
[17] With regard to any discussion about any possibility that he may have used the scissors in the past to harm a worker at the group home, that was in the past and it certainly had not "come to pass". In that sense, the defendant is engaging in some retrospective speculation. There is no evidence that he had the scissors for that purpose and it was only the suggestion of the officer that he contemplated it for that purpose. Upon review of the conversation, the defendant while admitted that he contemplated hurting some members of the staff, he had ruled it out for various reasons.
[18] The Crown suggests that as he was fleeing the home, he could have used the scissors as a weapon in his escape. He never said that he intended to use the scissors for that purpose and, in fact, he did not do so at any time up to or during his arrest. This suggestion does not go beyond mere speculation.
[19] There is no evidence other than mere speculation that he would have used the scissors for any of the above purposes on July 18, 2015.
[20] With regard to a possible use of the scissors sometime in the future for a suicide attempt, I find that to also be a speculation as to what may happen in the future if some certain events (did not get to Toronto) came to pass. The question is whether at the time he possessed the scissors on July 18, 2015, this was his intention. In other words, is there more than speculation that his possession of the scissors was for that purpose. I do not think so. His intention can only be surmised by his statement to the police. I do not take from that response to the officer's interrogatory that he had any present intention to commit suicide.
[21] Even if he had some vague intention of committing suicide in the future, I do not think that it would be sufficient to found the intention. In R. v. Bell, [2016] O.J. No. 1376, Crewe J. dealt with a situation where a man was in possession of a knife and was (in the presence of his wife) threatening to kill himself. He was doing this for some 6 to 8 minutes. His wife intervened and tried to stop him from using the knife on himself and in the ensuing melee, she was injured. By implication in convicting the defendant, the court found that in announcing his desire for self-immolation in front of his wife and holding the knife, it would have been obvious to him that she would try to stop him at great risk to her own safety.
[22] Our case is far removed from that fact scenario, and I do not have to find that a suicide attempt is not an "intention to cause death or injury to any person". It may be in certain circumstances, but I find this is not one of those circumstances. A vague statement of a possible use of a pair of scissors in a suicide at some undefined point in the future in some undefined circumstance is not in my opinion, a sufficient "intent to cause injury or death to any person". If that were the case, any person with any such device (or any number of common household devices) could be found guilty of these offences if they ever had any thoughts of suicide.
[23] By the same reasoning, the fact that he was living perhaps on the streets does not, in and of itself, express the necessary intention which is required at the time in question. He stated he may have to resort to thievery to get food. That does not mean that he is intending to use the scissors as part of the thievery. He never said so, and thievery does not in and of itself require any acts or threats of violence. That it may be a future possibility does not in my opinion prove beyond a reasonable doubt that his possession at that time was for use as a weapon.
[24] By way of illustration, if he was leaving the home with a view to meeting a person with him he had some real disagreements, then his intentions for the use of the scissors as a weapon is a real probability as opposed to a remote possibility. By the same token their possession within a prison population where threats of and use of violence is a daily occurrence, then his intentions could also be clear. That is not the situation here.
Conclusion
[25] For the reasons aforesaid, I find that the defendant did not possess a "weapon" as defined by the Criminal Code and thus cannot be convicted of any breach of his probation, nor possession of a weapon for a purpose dangerous to the public peace. I find the defendant not guilty on Counts 1 and 2.
[26] I also find the defendant guilty of 3 counts of breaches of probation, namely counts 3, 4 and 5.
[27] Count 3 is a breach of the order to keep the peace and be of good behaviour. If it were simply founded upon the other two breaches, then I believe it could not stand under the doctrine of R. v. Kienapple, [1975] 1 S.C.R. 729. However, the Crown asserts that the actions during the fleeing of the group home by going through people's back yards (as a trespass) and causing a general disturbance could also be a breach of the peace. I agree, and the defendant will be convicted of counts 3, 4 and 5.
Signed: "Justice P.N. Bourque"
Released: August 11, 2016