Court Information

Date: October 8, 2020

Information No.: 19-150005540-00

Ontario Court of Justice

Her Majesty the Queen

v.

Paul Anthonypillai

Reasons for Judgment

Before the Honourable Justice M. Callaghan

On October 8, 2020 at Toronto, Ontario

Appearances

D. Reznikov – Counsel for the Crown

V. Balasubramaniam – Counsel for Paul Anthonypillai

Overview of the Case

Mr. Anthonypillai is charged with uttering threats and being in possession of a weapon for a dangerous purpose. These two charges arise out of an incident that took place in the family home on August 4th, 2019. The accused and the complainant have been married for 25 years and reside together with their two adult children. The accused is alleged to have used a large kitchen knife to cut the cord of a blender that his wife, Ms. Charlet Anthonypillai, was using before smashing it to the ground and was then threatening to cut her to pieces or kill her.

Mr. Anthonypillai is charged with one count of weapons dangerous and one count of uttering threats.

Foundational Principles

Mr. Anthonypillai is presumed innocent. He does not have to prove anything. He does not have to raise a reasonable doubt. The Crown must prove the essential elements of the offence beyond a reasonable doubt. This burden of proof rests on the Crown throughout the trial and never shifts to the accused.

In R. v. Lifchus, [1997] 3 S.C.R. 320 the Supreme Court of Canada explained the meaning of a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt and must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if I believe the accused is probably guilty, or likely guilty, that is not sufficient. In those circumstances I must give the benefit of the doubt to the accused and acquit.

Where the case, such as this one, turns entirely, or almost entirely, on the credibility of the complainant and the accused, the issue is not "which version of the matter is true", or "whether to believe the complainant or the accused". The issue is whether the Crown's case has been proven beyond a reasonable doubt.

In assessing the evidence in this case, I must follow the principles and the analysis set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742:

1. If I believe the accused, I must acquit.

2. If I do not believe the evidence of the accused, but I'm left in a reasonable doubt by it, I must acquit.

3. Even if I'm not left in doubt by the evidence of the accused, I must ask whether on the basis of the evidence which I do accept I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

Undisputed Facts

It's not disputed that on the 4th of August 2019 the accused and his wife, the complainant, Charlet Anthonypillai, were in the residence. Ms. Anthonypillai began using a blender to prepare food in the kitchen while the accused was sleeping on the couch after having worked the night as an Uber driver. The couch is in the living room adjoining the kitchen. At around 7:00 a.m., the noise of the blender woke up the accused who proceeded to enter the kitchen. At one point he picked up a large kitchen knife from the door and hacked the blender's electric cord into several pieces. The blender either intentionally or inadvertently ended up smashed on the floor and Mr. Anthonypillai uttered something to his wife.

It is also undisputed that almost immediately after this incident Ms. Anthonypillai went upstairs, called the police who arrived shortly thereafter at the family residence.

Crown's Case

The Crown called one witness, the named complainant, Ms. Charlet Anthonypillai, and brought an application to admit the 9-1-1 tape from the date of the incident as evidence for the truth of its contents relying on the res gestae exception to the hearsay rule.

Ms. Anthonypillai is 56 years old and has been married to her husband for 25 years. They live together with their two adult children.

On August the 4th, 2019 she was at the residence in Etobicoke. Around 7:00 a.m. she was chopping beet roots and carrots to make juice in the kitchen. The living room adjoins the kitchen. Her husband was asleep in the living room. She wasn't paying attention at the time of what her husband was doing. She was cutting vegetables, collecting them in a cup before they went into the blender.

Without warning, her husband then came into the kitchen, took a large kitchen knife from inside the drawer and began to hack the cord of the blender to pieces. She was next to the blender, turning towards the other side washing. She estimates that he was approximately one metre from her at the time. He didn't say anything. He just came into the kitchen, grabbed a knife and cut the cord to the blender into pieces. She didn't know what to do. She couldn't think. She doesn't remember what he did with the blender after.

After given the opportunity to look at her statement to the police to refresh her memory, she testified that after cutting the cord to the blender, he smashed the blender by throwing it the floor. The glass part of the blender broke into many pieces. She was shocked and shaking.

After refreshing her memory, Ms. Anthonypillai testified that her husband said to her, "If you stand here and do anything, I will cut everything." She testified that her husband did not say that he would cut her, he said that he would cut everything. She testified she didn't know what that meant. The cutting of the cord and the smashing of the blender occurred between 7:15 and 7:25 approximately.

The Crown introduced photographic exhibits identified by Ms. Anthonypillai as being taken by the police in her kitchen on August 4th, 2019. They were marked as Exhibits 1 through 4 in this proceeding. Exhibit 1 was a photo of a kitchen showing the debris on the floor from the smashed blender and its contents; Exhibit 2 was the blender cord cut into numerous pieces; Exhibit 3 was the base of the blender without the glass container; and Exhibit 4 was a large blue-handled kitchen knife that was used to cut the cord to the blender.

Ms. Anthonypillai testified that after the incident, she went upstairs and called 9-1-1. The Crown played the 9-1-1 tape for her to refresh her memory. During the 9-1-1 call, Ms. Anthonypillai indicated to the operator that her husband threatened to kill her and that he, "broke things and he is telling me he will cut me." A transcript of the call is marked as an exhibit in the proceedings. She identified herself as the caller. It appeared to me from the way she gave her evidence in court that Ms. Anthonypillai was very reluctant to tell the court about the threat by her husband to cut her or kill her.

The Crown was permitted to cross-examine Ms. Anthonypillai in relation to the inconsistencies between what she told the 9-1-1 operator and her evidence-in-chief pursuant to section 9(2) of the Canada Evidence Act. When confronted with these inconsistencies by the Crown, Ms. Anthonypillai admitted that her memory was best right after the incident and she acknowledged that what she told the 9-1-1 operator was truthful.

Defence Case

Mr. Anthonypillai testified that back in August of 2019 he was driving Uber. He started working the night of August the 3rd, 2019 into the early morning hours of August the 4th, 2019. He arrived home around 5:40 and went to sleep around 6:00 or 6:05 a.m. He normally sets his alarm for 8:00 a.m. and sleeps on a couch in the living room which is adjoining the kitchen. On August the 4th, he went to sleep around 6:05. His wife came downstairs and was making juice in the blender. The ice was making a loud noise and he asked her to stop doing it, but she continued anyway.

Despite being very tired, he testified that he asked her politely to stop using the blender and she continued to run the blender without stopping. He then went into the kitchen, took out a large kitchen knife, and chopped the blender cord into four pieces. He testified that when he cut the cord of the blender she was near the couch in the living room, about 8 to 10 feet away.

After he cut the cord to the blender, it turned suddenly and it fell on the ground breaking. He indicated he did not intentionally throw the blender to the floor. He told his wife if she took another machine, he would cut it too. He denied threatening to cut or kill her. Mr. Anthonypillai went then to the basement to have a shower and was getting dressed. He heard a knock at the door and it was the police.

In cross-examination, Mr. Anthonypillai repeatedly denied that he was angry, saying that he was simply a bit annoyed and asked why he cut the cord into pieces instead of simply unplugging the blender, he testified that she would be able to plug it in again. Mr. Anthonypillai disagreed with the Crown's suggestion that his wife sounded frightened on the 9-1-1 call.

The 9-1-1 Call, Hearsay and the Res Gestae Exception

The Crown sought to adduce the 9-1-1 call made by Ms. Anthonypillai on the 4th of August 2019 as res gestae and, therefore, admissible for the truth of its content. The Crown's position is that the res gestae statements are presumed to be reliable because they are made under pressure, or emotional intensity. The Crown argued the statement will be admissible under the res gestae exception where:

1. The statement was made close in time to an unusual or overwhelming event; and

2. The event left the declarant under pressure or emotional intensity preventing the opportunity to concoct or mislead the recipient.

The Crown pointed out that 9-1-1 calls have often been admitted under the res gestae exception.

Mr. Reznikov for the Crown argued that both the contemporaneity and the emotional intensity requirement for res gestae are established in this case. He argued that Ms. Anthonypillai called the police within minutes of her husband cutting up the blender cord with a large knife, smashing the blender and threatening to cut her in pieces. Further, she had no opportunity to concoct or fabricate a story. He submitted that Ms. Anthonypillai was significantly emotionally impacted by what had occurred and sounded clearly anxious and afraid on the 9-1-1 recording.

Position of the Defence

Counsel for Mr. Anthonypillai argued that the 9-1-1 call is hearsay evidence and, therefore, is prima facie inadmissible. He pointed out the complainant was before the court and provided her evidence under oath. I understood his argument to be that there were simply too many inconsistencies between the 9-1-1 call, her statement to the police, and her evidence under oath in court and, as such, the court should have concerns about its reliability. I understood the corollary of the defence argument to be that, even if the court determines that the content of the 9-1-1 meets the res gestae exception to the hearsay rule, the court should exercise its residual discretion and exclude the evidence due to its unreliability.

The Law

Ms. Anthonypillai's 9-1-1 call is hearsay. It is presumably inadmissible unless it fits within a traditional exception to the hearsay rule, specifically the res gestae exception. I find the 9-1-1 call to be admissible as it meets the res gestae criteria.

I adopt the legal analysis of Fairborn, J (as she was then) in R. v. Brown, 2015 ONSC 4121, [2015] O.J. No. 4125 to provide a thorough overview of the res gestae exception and how it relates to 9-1-1 calls specifically:

Hearsay evidence is comprised of an out-of-court statement offered for the truth of its contents by someone or something other than the declarant. The presumptive rule against hearsay evidence is an exception to the general rule that all relevant evidence is admissible. And that's R. v. Carroll, [2014] ONCA 2 at paragraph 99 and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at paragraph 34. The presumptive rule against admissibility is rooted in the concern that, without the declarant present, the reliability of the out-of-court statement cannot be tested for its truth and accuracy. Khelawon at paragraph 2.

Hearsay is an exclusionary rule to which there are a number of exceptions and a catch-all principled exception. Prior to R. v. Khan, [1990] 2 S.C.R. 531, there exists multiple exceptions to the general exclusionary rule related to hearsay. One of the exceptions is the res gestae rule. When Khan came along the old exceptions -- known as "pigeon-holes" -- were somewhat overshadowed by what became known as the principled approach to hearsay rule. The principled approach allows hearsay to be elicited despite the fact that it may not fall within one of the traditional and well-known exceptions, provided the evidence met the criteria of necessity and reliability.

As the jurisprudence evolved, it became clear that the exceptions remained live and were not entirely subsumed by the principled approach. Fifteen years after Khan, in R. v. Mapara, [2005] SCC 23 at paragraph 15, McLachlin, the Chief Justice at the time, speaking for the majority, concluded that the traditional exceptions to the hearsay rules remained presumptively in place. While the exceptions could be challenged as failing to meet the indicia of necessity and reliability, if such a challenge succeeded, the traditional exception could be modified to bring it in line with the principled approach. And in this case there was no such challenge made.

Moreover, where a traditional exception applied, only in a "rare" case would an out-of-court statement be excluded because it fails the "indicia of necessity and reliability" under the principled approach, and that's at Mapara at paragraph 15. Of course, as noted by the Chief Justice, where a traditional exception to the hearsay rule satisfies the requirements of necessity and reliability, it would only be in the most exceptional case where the statement itself would be found to be inadmissible. And the quote from that is:

In all but the most exceptional cases, the argument is spent at the point where an exception to the hearsay rule is found to comply with the principled approach to the hearsay rule.

And that was at Mapara at paragraph 34.

The res gestae doctrine constitutes a principled exception to the hearsay rule and one that has passed the test of time – both before and after the principled approach to hearsay was introduced into our jurisprudence. Res gestae statements are often referred to as "spontaneous utterances" made contemporaneously, or close to contemporaneously, with the event that forms the subject matter of the declaration. Their reliability rests on the belief that, owing to the contemporaneity requirement, there has been no time for concoction or fabrication.

Exact contemporaneity is not required. Rather, the entire circumstances are assessed to determine whether the subject statement is proximate enough to the event to meet the guarantees of trustworthiness: R. v. Head, [2014] MBCA 59 at paragraph 30, and as noted by Dubin J.A. (as he was then) in R. v. Clark, [1983] 7 C.C.C. (3d) 46. The key is to address whether the declaration is sufficiently contemporaneous so as to "exclude the possibility of concoction or distortion". See: R. v. Shea, [2011] NSCA 107 at paragraph 64, and R. v. Sylvain, [2014] ABCA 153 at paragraph 31.

9-1-1 calls have been repeatedly admitted under the res gestae exception to the hearsay rule. Chief Justice Fraser and Picard J.A. recently catalogued a number of these judgments in Sylvain at paragraph 34. As the Ontario Court of Appeal in R. v. Nicholas, [2004] O.J. No. 725, 184 O.A.C. 139, Abella J.A. (as she was then) endorsed the view that a 9-1-1 call could be categorized as falling within the res gestae exception. In the circumstances of Nicholas, the call had been made within 10 minutes of the attack and there were no suggestions of motive for misrepresentation of what happened, as at Nicholas, paragraphs 88-90.

While not in the context of a 9-1-1 call, the Court of Appeal for Ontario recently dealt with spontaneous utterances in R. v. Nguyen, [2015] ONCA 278 at paragraph 145, where Gillese J.A., for the majority, reinforced this "established exception to the hearsay rule", resting on the understanding that statements made "under pressure and emotional intensity give the guarantee of reliability upon which ... the rule has traditionally rested".

The Law Applied

I conclude that the 9-1-1 call made by Ms. Anthonypillai falls within the long-established res gestae exception to the hearsay rule. I am satisfied that Ms. Anthonypillai made the call almost immediately after her husband hacked the cord of the blender before it smashed to the kitchen floor and threatened her.

I find that Ms. Anthonypillai's voice, captured on the 9-1-1 tape, is clearly one of a person who is still suffering from the shock of what just happened and it is evident to me on the call that Ms. Anthonypillai is anxious and frightened.

Analysis

There really is only one major area of disagreement in the version of the events between the complainant and the accused. The complainant's evidence was that after cutting the cord of the blender and smashing it to the ground, he threatened to cut her. Mr. Anthonypillai testified that after cutting the cord of the blender it inadvertently fell to the ground and smashed and he told his wife that he would cut everything and explained in court that he meant if she got another blender or machine out, he would cut its cord too.

The Crown argued that the 9-1-1 call, together with the evidence of Ms. Anthonypillai and the photos taken at the residence, establish the elements of the offences of both uttering the threat and weapons dangerous beyond a reasonable doubt. The Crown argued that grabbing of the large kitchen knife and violently hacking the electric power cord of the blender and smashing it to the ground while Ms. Anthonypillai was attempting to use it constitutes the offence of weapons dangerous. The Crown argued that the use of the kitchen knife to hack the power cord was intended to threaten and intimidate the complainant into compliance.

The Crown submitted that, even on the evidence of Mr. Anthonypillai, the Crown has satisfied the elements beyond a reasonable doubt on the offence of weapons dangerous.

Counsel for Mr. Anthonypillai argued that the complainant's evidence was inconsistent and unreliable in relation to the alleged threat to her. He pointed out that the initially sworn statement in court was different than the one she told the 9-1-1 operator and the first officer on the scene. These inconsistencies alone should leave the court with a reasonable doubt.

Further, he argued that Mr. Anthonypillai's evidence had the ring of truth. He did not try to deny his bad behaviour. He admitted to cutting the cord of the blender causing it to accidentally fall to the ground. He repeatedly denied threatening to kill or cut his wife, indicating he said he would cut everything and he explained what he meant was that if she brought out another machine or blender, he would cut its cord too.

In relation to the charge of weapons dangerous, the defence position is that Ms. Anthonypillai was some 8 to 10 feet away from the blender when his client cut the cord with the kitchen knife. Further, the smashing of the blender was an accidental by-product of his cutting of the blender's cord. Counsel submits that Mr. Anthonypillai's evidence should leave the court in a state of reasonable doubt.

Credibility Assessment

I found the evidence of Ms. Anthonypillai to be credible and trustworthy. It was very clear to me that she did not want to be in court and appeared uncomfortable when having her memory refreshed by the Crown. Though initially Ms. Anthonypillai testified that her husband told her he would cut everything, when confronted with the 9-1-1 call made immediately after the incident, she acknowledged that she told the 9-1-1 operator that her husband threatened to cut her and kill her. She testified that she told the truth to the 9-1-1 operator.

Ms. Anthonypillai's evidence was supported by the photos entered as exhibits in this proceeding and is consistent with most of what Mr. Anthonypillai's version of the events is. Having determined that the 9-1-1 call was admissible, or is admissible for the truth of its contents, I find it to be a powerful confirmatory evidence of the testimony of Ms. Anthonypillai.

I found Mr. Anthonypillai's explanation for his conduct to be highly problematic. Mr. Anthonypillai was awoken by the sound of his wife using the blender. He admits to walking into the kitchen, opening a drawer, taking out a large kitchen knife before violently hacking the electric cord of the blender. The blender's glass container ended up smashed on the floor, either intentionally or through inadvertence, after he hacked the cord.

His insistence that he was not angry but rather irritated and simply wanting the blender to stop is not believable and to me negatively affects his credibility. Clearly, he was very angry and he lost control. That is the only rational explanation for his conduct. I do not accept his evidence that after destroying the blender he told his wife he would cut everything. On the evidence I am satisfied beyond a reasonable doubt that in his angered state he threatened to cut his wife if she continued to do what she was doing. After considering his evidence carefully, I am not left in a state of reasonable doubt.

Weapons Dangerous Charge

On the charge of possession of weapons dangerous, Section 88 of the Criminal Code indicates that:

Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for purposes dangerous to the public peace or for the purpose of committing an offence.

Section 2 of the Criminal Code defines a weapon as:

Anything used, designed to be used or intended to be used for:

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person.

The crucial element of the offence of weapons dangerous is the purpose for which the accused has the weapon. Merely using the weapon in a way which is, in fact, dangerous will not make out the charge unless it is proven that this was the accused's purpose for possessing the weapon or other specific thing. All circumstances surrounding the possession of the weapon, or specific thing including its use, if any, will be considered to determine the accused's purpose. R. v. Proverbs, [1983] 9 C.C.C. (3d) 249 and R. v. Cassidy, [1989] 2 S.C.R. 345

Applying the law to this case, I conclude that Mr. Anthonypillai's use of the kitchen knife was for the purpose of intimidating his wife and meets the definition of a weapon in this context.

I also find that the circumstances surrounding his possession and use of that knife support the conclusion that he was not simply trying to incapacitate the blender, but rather to intimidate his wife into ceasing her activities in the kitchen. As such, I am satisfied that the elements of the offence have been proven beyond a reasonable doubt.

Verdict

There will be a finding of guilt in relation to both counts on the Information.