ONTARIO COURT OF JUSTICE

CITATION: R. v. Kathiramalai, 2018 ONCJ 372

DATE: May 31, 2018

Scarborough - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KAJANTHERAN KATHIRAMALAI

For the Crown: A. Penny

For the Defendant: B. Alveres

Heard: August 28, 29, Dec. 20, 21, 2017 and March 16, 2018

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Kathiramalai is charged with forcibly confining his wife and two children, as well as assaulting his wife.

[2] The charges arise out of an incident at the family home on August 15, 2016. In the early hours of that morning the home began to fill with smoke. The fire department arrived, extinguished the fire and determined that the fire had originated in the basement and that its origin was electrical. It was not intentionally set.

[3] At issue in this trial is the behaviour of the accused the night before the fire, and between the family’s discovery of the fire and the arrival of the firefighters.

[4] Approximately two days after the fire, the accused’s wife, Pathamapriya Ramamoorthy, went to the police and provided them with a statement alleging that the accused had assaulted her in the basement the night before the fire and had tried to confine her and her children in the burning home. She told police that the accused had told her and the children, as they tried to leave the house, that it was his intention that they all die together in the fire.

[5] The children were also interviewed by police.

[6] At trial, Ms. Ramamoorthy recanted her allegations. She essentially testified that she had fabricated the allegations after the fire because she was angry at her husband after he announced the night before the fire that he was returning to Sri Lanka. She was also angry that he had refused to speak to her after the fire.

[7] I ruled that Ms. Ramamoorthy’s statement to police was admissible.

[8] This case turns principally on the credibility of Mr. Kathiramalai and his wife, Ms. Ramamoorthy.

[9] Mr. Kathiramalai testified and denied assaulting his wife. He further denied the allegations of forcible confinement.

[10] With respect to any of the alleged offences, if I believe Mr. Kathiramalai’s denial I must of course find him not guilty. Even if I do not believe him, his evidence and the evidence of other witnesses favourable to his position may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. If it does, I must find Mr. Kathiramalai guilty of those allegations. If it does not, I must acquit him.

B. EVIDENCE

(a) Introduction

[11] The Crown called several witnesses in her case, but only three of them are of any particular moment: Pathamapriya Ramamoorthy; Ms. Ramamoorthy’s daughter, Varshana Kajantheran, age 10; and her son, Abhriam Kajantheran, age 6.

[12] Only the accused testified for the defence.

(b) The evidence for the Crown

(1) Ms. Ramamoorthy’s statement to police

[13] Ms. Ramamoorthy is 39 years old. She is originally from Sri Lanka and came to Canada in 2001. She married the accused in 2005. They have two children together.

[14] At the material time, she and her family lived in a three bedroom bungalow on Slan Avenue in Scarborough.

[15] On August 17, 2016 Ms. Ramamoorthy provided police with a video statement in English, with the occasional assistance of an interpreter. The police told her that she was not in any legal jeopardy, as she was a victim, that it was important that she tell the truth, and that she could be charged criminally if she misled the police. No oath was administered.

[16] She told police that she had announced to the accused the night before the fire that she was leaving him. He begged her to stay and an argument ensued culminating in him assaulting her in the basement, causing a bruise to her head. Their children were upstairs when this occurred.

[17] After the argument was over they went to sleep: he in the master bedroom, she in the children’s room. At around 4:30 am she awoke to the sound of the carbon monoxide alarm and the accused’s footsteps in the hallway, and the smell of smoke entering the bedroom.

[18] Ms. Ramamoorthy woke up her children and tried to take them out of the house, but the accused grabbed them and prevented them from leaving, telling them that he wanted all four of them to die together in the fire. She managed to escape and went out through the front door with their daughter. The accused managed to wrestle their son from her grasp. Her daughter went back in to try to get her son, but failed. Soon, the accused emerged from the front door with their son in his arms.

(2) The children’s statements to police

[19] Both children gave video statements to police on August 17, 2016. These video statements formed the major part of their testimony in chief at trial pursuant to s. 715.1 of the Criminal Code.

[20] The couple’s son, Abhriam, was only five years old when interviewed. He told police that he understood the difference between telling the truth and telling a lie.

[21] He started by saying that he didn’t remember the fire at his house nor anything that had happened. He then said he recalled smoke in the basement and being taken downstairs by the accused even though he wanted to be outside. He also said that the accused “didn’t let my mom go outside”.

[22] The couple’s daughter, Varshana, was nine years old when she spoke to police. She clearly understood the importance of telling the truth.

[23] She told police that the night before the fire while her parents were in the basement and she and her brother were upstairs, the accused pushed her mother causing a bruise, and “a little bleeding” to her head. The next morning, when she, her brother and her mother were trying to leave the house in response to the spreading smoke, the accused grabbed her mother and her brother while saying “let’s all die together”. Her mother managed to get away and joined Varshana in exiting the house by the front door. Varshana then returned to retrieve her brother, which she attempted by kicking her father in the leg so he would release her brother. At point the accused was halfway to the basement with her brother in his arms.

(3) Ms. Ramamoorthy’s trial testimony

[24] Ms. Ramamoorthy’s trial testimony, which was given in Tamil, with an interpreter, amounted to an almost total recantation of her statement to the police. In so far as any of her testimony was consistent with her statement to police, these portions do not point to the accused’s guilt.

[25] She testified that the accused had come downstairs to the basement where she was sitting and told her he was leaving for Sri Lanka. She threw herself at his feet and implored him to stay. Her head hit the floor, causing some later swelling.

[26] Everyone eventually went to bed. After waking up to the alarm and the smoke she tried to grab her son, but the accused already had him in his arms. She quickly exited out the front door with her daughter. The accused did not prevent either of them from leaving the house.

[27] When cross-examined by Ms. Penny (pursuant to s. 9(2) of the Canada Evidence Act) and by Mr. Alvares about her statement to police, she said that the allegations of violence on the part of the accused were untrue, and that she lied to the police because she was angry at the accused for his decision to leave and return to Sri Lanka and for his having refused to speak to her after the fire.

[28] She confirmed that her children were present when she complained to her sister about the accused’s behaviour the day of the fire. She admitted to suffering from depression and panic attacks which adversely affect her perception and memory.

(4) The children’s trial testimony

[29] Varshana testified that she was present when her mother told her aunt what had happened in the house during the fire, and the night before. Much of what she had reported to police was not what she herself had witnessed, but rather what she had overheard her mother say. For example, she never heard the accused say “let’s all die together”.

[30] The accused never tried to prevent anyone from leaving the house. Her mother suffers from anxiety and panic attacks.

[31] Abhriam testified that his father was carrying him, and not “in a bad way”. The accused never prevented his mother from leaving the house.

(c) The evidence of the accused

[32] According to Mr. Kathiramalai, while he had assaulted his wife in the past, and had pleaded guilty to that offence, on the occasion of the fire, he did not assault her nor did he prevent her or their children from leaving the house.

[33] The night before the fire, while he and his wife were in the basement, he announced to her that he was leaving for Sri Lanka. She threw herself at his feet. He did not assault her. He planned to book a ticket the next day and leave as soon as possible.

[34] After the fire was first discovered, his wife had a panic attack. He tried to comfort her and she quickly left through the front door with their daughter. He took his young son in his arms to protect him. His son had always had trouble walking and needed special shoes. He kept his son in his arms as he looked for the source of the fire. Realizing that the situation was getting more serious, he decided to abandon his search for the source of the fire and took his son to the front door. After his son exited, the accused went back to look for the fire extinguisher, couldn’t find it, then decided to exit through the front door.

[35] He never said anything about them all dying together in the fire.

C. ANALYSIS

[36] I find it difficult to accept the accused’s description of his plan to suddenly fly off to Sri Lanka as soon as possible having made no plans to deal with his family’s affairs. But that is the only aspect of his testimony that I struggle with. The balance of his testimony made sense on its face. The idea that a father of a five-year-old boy who has trouble walking would instinctively pick him up when smoke began to fill the house makes sense. And while in hindsight, it is easy to say that the accused should have left the house immediately upon picking up his son, people don’t always make the best choices when faced with an emergency.

[37] Regardless of whether I believe the accused, his evidence, along with the rest of the evidence easily raises a reasonable doubt. It is largely corroborated by his wife’s trial testimony and by certain parts of his children’s testimony.

[38] Even without taking the evidence of the accused into account, the evidence that Ms. Penny relies on in support of her case also leaves me with a considerable doubt as to what occurred in the family home that day. Ms. Ramamoorthy’s statement to police, the centerpiece of the Crown’s case, has been unequivocally contradicted in her testimony under oath. I would only believe the allegations in her statement to police if they were materially corroborated, and they are not. Following the Supreme Court’s guidance on the evaluation of children’s testimony (R. v. B. (G.), 1990 CanLII 7308 (SCC), 2 S.C.R. 30; R. v. W. (R.), 1992 CanLII 56 (SCC), 2 S.C.R. 122), I find the testimony of the children in this case to be either exculpatory, or extremely vague and unreliable. It is apparent to me that the great majority of the damning portions of their testimony is not what they actually saw or heard, but rather what they overheard their mother telling their aunt.

[39] Ms. Ramamoorthy told the police one thing, and then testified to the opposite before me. Ms. Penny argues that her statement makes sense and that her in-court testimony does not. If I had to choose between them, which of course I do not, I would prefer her in-court testimony, if only because it is corroborated by the testimony of the accused. In any event, it would be dangerous to rely on anything Ms. Ramamoorthy has said about the critical events.

(1) The confinement charges

[40] Even on the testimony of the accused, he did indeed confine his son. I find, however, that as Abhriam’s parent, he had the lawful authority to do so in the circumstances. He did so with the best interests of his child in mind. R. v. Magoon, 2018 SCC 14, [2017] S.C.J. No. 101, paras. 64 - 68. I believe the accused’s testimony that he picked up his child so as not to lose sight of him as the house filled with smoke, and that he did so instinctively.

(2) The assault charges

[41] For the reasons stated above, I do not accept the allegations of an assault in the basement made by Ms. Ramamoorthy. Her two irreconcilable versions of her encounter with the accused fill me with doubt.

D. CONCLUSION

[42] In the result I find the accused not guilty on all counts.

Released on May 31, 2018

Justice Russell Silverstein