Court File and Parties

Ontario Court of Justice Date: 2024 06 21 Court File No.: 24-48102165 Region: Toronto

Between:

His Majesty the King, Applicant

— And —

Mayuran Sritharan, Respondent

Before: Justice C. Faria

Heard on: June 7, 2024 Reasons for Judgment released on: June 21, 2024

Counsel: Keith Garrett, for the Crown Bryan Kolman, for the defendant Mayuran Sritharan

Faria J.:

I. Introduction

[1] Mayuran Sritharan is charged with assaulting his younger brother Luxmanan Sritharan with a butcher knife and threatening to cut his throat.

[2] I heard evidence from one witness, the complainant. The Defence called no evidence. Date, identity, and jurisdiction were admitted.

[3] The issue is whether the Crown has proven the essential actus reus and mens rea of each count beyond a reasonable doubt.

II. Evidence

[4] Mr. Sritharan, the complainant, is a 37-year-old who owns a 2 bedroom plus den condo in Toronto. His mother lives with him, and he testified, where his mother goes, his 41-year-old brother, the defendant goes too. The complainant occupies the primary bedroom with his own ensuite, their mother occupies the second bedroom, and the defendant occupies the den. They have lived together in this space for about 15 years.

[5] On January 1, 2024, Mr. Sritharan was home for the holidays. He woke up at about 8 a.m. to his brother screaming at their mother in the living room, which was not unusual, so he ignored it. The screaming continued, though it subsided at times, until about 3 p.m. when the complainant left the condo to get something to eat and wash his car. When he returned about 2 hours later, the situation had not changed, as his brother was still screaming. The complainant went into his room. He then heard his brother say something that he did not like. The defendant called their mother a “crippled bitch”. At this point, he opened his bedroom door and said to his brother “Do you ever shut the fuck up?”

[6] The complainant testified his brother became angry and said to him “who are you to say shut the fuck up?”. The defendant went to the kitchen, grabbed a butcher knife, held it up above his head in his right hand, pointing it at the complainant and said in Tamil, “I am going to cut your throat”. A photo of the butcher knife was filed as an exhibit. It has a large 12-inch blade.

[7] The complainant was still by his bedroom door, the defendant was behind the kitchen counter, about 10 steps away, and their mother was between them by the side of the kitchen counter that separated them.

[8] The complainant testified his brother was “coming towards me” and his mother was between them, with her hands up, trying to hold his brother back. He testified his brother came into physical contact with their mother. The complainant perceived his brother trying to get by their mother. The complainant closed his door, which locks automatically, and called 911. It was only a couple of seconds between the time the defendant held the knife and came into contact with their mother, and only a few seconds between that contact and the complainant closing his door.

[9] When describing the interaction, the complainant testified he:

• Was concerned for his safety.
• Closed the door to keep his brother out “in case he decided to come into my room”.
• Was concerned his brother might “hurt” him.
• Called the police because he thought his brother “might actually do something”.
• His brother normally screams, breaks, and throws things, but this interaction was different because his brother was aggressive, holding a knife, and his demeanour and eyes was different than other times.
• He did not know if his brother was on drugs, but thought his eyes were like when his brother “binges”.

[10] In cross-examination, the complainant testified:

• The knife was in its original spot under the sink when police came.
• The defendant was on the couch and waited for police too.
• The defendant could easily push their mother aside if he wanted to.
• He told the police he was only “partly” concerned at first.
• He had not told the police the defendant had pushed his mother to try to get to him.
• He had not spoken to the defendant for years though they lived in close quarters.
• Their mom gave the complainant $500 for the defendant’s rent, money which may have come from the defendant or not.
• He was not ok with the defendant living with him but allowed it for the sake of their mother. On previous occasions when he kicked the defendant out of the condo, the defendant would keep knocking on the door, and their mother would let him back in to stay.
• He told the police their mother does not speak English and would likely not provide reliable evidence about what happened because she feels sorry of the defendant.

III. Legal Principles & Analysis

[11] Before I begin to review the evidence, as in every criminal case, Mr. Sritharan is presumed innocent. The onus rests on the Crown to prove the essential elements of the offence beyond a reasonable doubt. That onus never shifts. Reasonable doubt is a doubt based on reason and common sense taken from the evidence or lack of evidence.

[12] To determine the actus reus and mens rea issues, I must assess the credibility and reliability of the witness. I can accept all, some, or none, of his evidence. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony.

[13] For clarity, the legislation reads:

Assault with a weapon 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault, (a) carries, uses or threatens to use a weapon or an imitation thereof,

Uttering threats 264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death or bodily harm to any person;

[14] The Crown submits it has proven both charges beyond a reasonable doubt, and relies on R. v. Horner, 2018 ONCA 971 in support of his position. He emphasizes the context and manner with which the defendant held the butcher knife and said the threatening words, as well as the complainant’s reaction to both the butcher knife and the words said, as evidence of the defendant’s intentions.

[15] The Defence submits the defendant should be acquitted of both charges. He argues the court should find the defendant did not move toward the complainant with the butcher knife and did not push their mother aside. If he had wanted to really get to the complainant with the butcher knife, their mother would have been no impediment.

[16] The Defence submits the words the defendant uttered were not shown to intend to intimidate or instill fear but rather akin to venting or being annoyed such as was found in R. v. Jex, [2004] O.J. No. 1907 and R. v. Botelho, 2006 ONCJ 247, and the complainant was not afraid as in R. v. Medeiros, [2000] O.J. No. 2697.

[17] These cases are not similar to the one at bar. In Botelho, the court found the complaint had concerns she would “be harassed for money” rather than having safety concerns. In Jex, the judge found an inmate threatening to kill his wife because he was a “ticking time bomb”, to be just “venting”. In Medeiros, the judge found a husband threatening to kill his wife while in a rage because he could not see his son, as expressing “extreme annoyance or displeasure” but he had no real intention to inflict harm.

[18] In this case, the facts are, as I find them, different. The evidence is the complainant was afraid, there is no evidence that the defendant was “venting”, and given the defendant was holding a butcher knife as he said the alleged threatening words, the action goes beyond annoyance and displeasure.

[19] The complainant testified in a direct, clear, and simple manner. He admitted he did not want his brother living with him, he readily said he was not sure when he was not sure, he freely accepted the occasions when what he said to police were not exactly what he testified to, and logically and credibly explained the differences. The complainant was careful not to suggest or imply the defendant assaulted their mother when he made physical contact with her when he spoke to the police. He explained why he thought his mother would be an unreliable witness. The complainant’s demeanour changed not at all whether answering questions in chief or in cross-examination. If anything, the tone of his voice showed it pained him to repeat what his brother said about their mother, it pained him that his brother has challenges, and that he was testifying against him, even though he wanted no contact with his brother.

[20] The complainant was unshaken on his evidence. He was consistent and coherent throughout. I find him to be a credible and reliable witness and accept his evidence in its totality.

[21] The act of holding a knife can itself constitute a threat to apply force R. v. Edgar, 2016 ONCA 120, 344 OAC 399 at para. 10.

[22] The relevant mens rea for assault with a weapon “lies in the appellant’s intention to threaten, and not in the intention to carry out that threat: R. v. Horncastle (1972), 8 C.C.C. (2d) 253 (N.B.C.A.) at p. 262” per Horner at paragraph 15.

[23] In this case, the complainant was clear that the defendant not only went to get a butcher knife from the kitchen and held it, but he raised it above his head, blade facing the complainant while standing about 10 steps away yelling in anger and making a move toward the complainant by trying to get by the counter and past their mother who was in the way.

[24] By both raising the butcher knife above his head, blade facing the complainant, and moving forward, the defendant clearly communicated his intention to threaten the complainant. I find the Crown has proven both the actus reus and the mens rea of assault with a weapon beyond a reasonable doubt.

[25] To determine in this case if the defendant uttered a threat, I turn to Clement at paragraph 13:

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.”

[26] The words “I am going to cut your throat” are objectively unambiguously threatening. The words were spoken in anger during an argument, while holding a butcher knife, blade facing the complainant.

[27] The complainant felt concerned about his safety, closed his door, thought the defendant could hurt him and called the police. The complainant differentiated this interaction from prior interactions by the defendant’s aggressiveness, demeanour, and his holding a knife whereas previously the defendant only yelled, threw, and broke things.

[28] The defendant’s intention to intimidate and cause fear was demonstrated by getting the butcher knife from its place below the sink in the kitchen before he said the words. By holding it up, moving forward and trying to go by their mother further illustrates his intention to be taken seriously.

[29] On this charge, I find the Crown has proven both the actus reus and the mens rea beyond a reasonable doubt.

IV. Conclusion

[30] The burden on the crown is high, and it has been met. I find Mayuran Sritharan guilty on both charges.

Released: June 21, 2024 Signed: Justice Cidalia C.G. Faria