Ontario Court of Justice

Date: 2019-12-19 Location: Newmarket

Between:

Her Majesty the Queen

— and —

Shanchayan Rajasingam

Judgment

Evidence Heard: 19 December, 2019.

Delivered: 19 December, 2019.

Counsel:

• Ms. Ivana Denisov, counsel for the Crown
• Ms. Uma Kancharla, counsel for the defendant

KENKEL J.:

Introduction

[1] Constables Snook and Racco attended at an address in Kleinburg to do a bail compliance check. The accused was on a recognizance to reside at that address and remain within that residence at all times unless he was in the presence of his surety or attending court in relation to a particular case in Scarborough. The officers were told by the surety and his wife that the accused was not present. They were in the home for half an hour, but Mr. Rajasingam did not present himself at any time or return to that address. The defence concedes the Crown has proved via notice and certified documents that the accused was bound by the bail conditions alleged on the date in question. It was also conceded that the Crown could prove the identification of the accused as the person bound by those conditions.

[2] At the close of the Crown's case, one count of failing to comply was dismissed on a non-suit application. On the remaining count, the Crown submits that the direct and circumstantial evidence shows that Mr. Rajasingam was not present in the residence as required by his recognizance. The defence submits that the Crown has not proved the breach alleged beyond a reasonable doubt. Mr. Rajasingam's release did not contain a condition that he present himself at the doorway of the residence to assist the officers in monitoring the bail house arrest conditions and it's reasonably possible he was there at the time.

Analysis

[3] The two officers were invited inside by the surety's wife. She told the officers the accused was living in Scarborough with his mother. The surety then spoke with the officers and he said he had just dropped the accused off at a Tim Horton's restaurant in Etobicoke. As explained in cross-examination, the police did not call out the accused's name based on the information that had been provided. There was no reason for them to ask for permission to search the residence.

[4] The officers were in the home for half an hour. During that time they confirmed the identity of the surety Mr. Elumuragan. They confirmed that he was aware of the conditions of the recognizance (Toronto Information #16-35002680) and his responsibilities as a surety. The surety told them that the accused did not have a phone so he could not call him. The officers left a business card and told the surety that Mr. Rajasingam should contact a lawyer and surrender himself to the police as he would be arrested for failing to comply with his recognizance. Mr. Rajasingam was arrested when he attended court in Scarborough at 1911 Eglinton Avenue East the next day.

[5] I agree with the defence that the statements of the surety and his wife are not admissible to prove the truth of their contents, including the assertions that the accused was not present in the home. The statements informed the officers' investigation and they are admissible to explain why the officers did not take further steps as discussed in cross-examination. I find that the reference made by the defence in final submissions to the fact that the surety and his wife gave multiple, contradictory statements as to why the accused was not present in the home does not assist the defence case.

[6] When assessing circumstantial evidence, it's important to remember that the Crown must prove that guilt is the only reasonable conclusion based on an assessment of all reasonable inferences flowing from the evidence as a whole – R v. Villaroman, 2016 SCC 33. The defence submits that inferences consistent with innocence do not have to be based on proven facts. The defence bears no burden of proof. Inferences consistent with innocence may arise from the circumstantial evidence, but they may also arise in some cases from the absence of evidence. I agree with these submissions, but I note that Villaroman does not authorize an "anything is possible" analysis which moves away from logical and reasonably possible inferences into conjecture and speculation.

[7] It's not contested that the officers were inside the residence in which Mr. Rajasingam was required to remain at all times unless in the direct and continuous presence of his surety. Mr. Rajasingam was not in the presence of his surety at that time and did not present himself to the officers. The certified copy showed that Mr. Rajasingam was not attending court for the purpose of trial on Toronto Information 16-35002680 which was the only other, very specific exception. He was arrested when he attended on that Information the following day.

[8] The defence submits that it's reasonably possible that the accused was in the home and was not aware that the police had attended during the half hour that they were there. While the surety had a legal obligation to enforce compliance with the bail terms, the defence submits that the mention by his wife that they were having marital difficulty leads to a reasonable inference that the surety may have been secretly hiding Mr. Rajasingam in the house, and that he may have thought lying to the police was preferable to admitting that fact to his wife despite the very serious criminal and financial consequences that would result.

[9] Considering the evidence as a whole, I find the Crown has proved that the only reasonable inference on all of the evidence is that the accused was not in the residence at the time the police attended and was in breach of his recognizance.

[10] Mr. Rajasingam would have identified himself to the police and confirmed his compliance with his bail conditions if he was present in the home and aware that the police were there. Even without a specific condition in that regard, it would make absolutely no sense for him to hide from the police and knowingly generate a further criminal charge, arrest and loss of his bail. Mr. Elumuragan was the surety for the $50,000 house arrest recognizance. He had a legal obligation and a very strong financial incentive to enforce compliance with its terms. Both officers made the purpose of their visit plain and advised that the accused would be arrested for breach if he was not in the home. It's not rational or credible that the surety would create a false criminal charge for Mr. Rajasingam and risk loss of the monies he pledged if the accused was actually in the home. It's not credible that Mr. Elumuragan would be so careless in his duties as a surety that he would not know whether or not the accused was in the house at the time. On the evidence as a whole, I'm unable to identify any reasonable inference that is inconsistent with guilt.

Conclusion

[11] I can find no evidence or circumstance that reasonably could leave a doubt. There will be a finding of guilt.

Delivered: December 19, 2019.

Justice Joseph F. Kenkel