DATE: May 30, 2024
ONTARIO COURT OF JUSTICE Brampton, Central West Region
R. v. KHAWTHAMAN SUNDARESWARAN
A. Persad-Ford, Counsel for Prosecution B. Petrouchinova, Counsel for the Defendant
ENDORSEMENT ON MATERIAL WITNESS WARRANT APPLICATION
INTRODUCTION
[1] The prosecutor seeks a material witness warrant under s. 705 of the Criminal Code for Niloshan Selvakumanran, a prospective prosecution witness in this case. The prospective witness has not attended court in answer to a subpoena requiring his attendance.
[2] The Defendant, through counsel, has attempted to assist the court, while recognizing that formal standing to appear on this Application is not established. The Defendant suggests that the test for issuance is not met for the following reasons:
a. The prosecution has not established that Neal Kumar and Niloshan Selvakumanran are the same person; and
b. The evidence lead on the Application consists of double and triple hearsay and it is not necessarily credible and reliable.
[3] This Application raises several issues:
i. What are the requirements for the issuance of a material witness warrant; and
ii. In all of the circumstances of this case, should a material witness warrant be issued.
Witness Warrant Requirements
[4] Before issuing a material witness warrant, a justice must be satisfied of two things: first, that the subpoena has been served in accordance with the requirements of the Code, and second, that the proposed witness will likely provide material evidence. [1]
EVIDENCE
[5] Officer Anderson testified as the officer-in-charge of this prosecution. The Defendant is charged with having an excess blood alcohol concentration within two hours of driving a motor vehicle. He is alleged to have been involved in a traffic collision.
[6] The prospective witness was the Defendant’s alleged passenger. When he spoke to police, the witness gave the name, “Neal Kumar.”
[7] The subpoena issued with yesterday’s date as the return date with today listed also as a trial date requires “Neal Kumar” of 44 Salstass Av., Toronto to appear in court.
[8] An officer at the scene of the motor vehicle collision recorded the witness’ name as “Neal Kumar” of 44 Falstaff Av., Toronto. The phone number given by the witness was 416-409-5424.
[9] In January 2024, when Constable Anderson sought to serve a subpoena on the witness, believing he could identify the Defendant as the driver of one of the vehicles, she learned that the name “Niloshan Selvakumanran” was the actual name of Neal Kumar. Constable Anderson also learned that Mr. Selvakumanran now lived at 84 Pebblestone Circle, Brampton. The officer sent a text message to 416-409-5424 to advise of the subpoena. That message went unanswered.
[10] Constable Anderson attended 84 Pebblestone Circle and spoke with Nilosa Selvakumanran, the sister of Niloshan Selvakumanran. She verbally confirmed that Neal Kumar is Niloshan Selvakumanran. Ms. Selvakumanran agreed to receive the subpoena for her brother.
[11] Subsequently, Constable Anderson has re-texted the prospective witness, without response. The officer has re-attended 84 Pebblestone Circle on two occasions, including this morning. She has confirmed the witness’ phone number with his sister. The sister confirmed having provided the subpoena for Neal Kumar to her brother, Niloshan Selvakumanran. The sister called the phone number 416-409-5424 in Cst. Anderson’s presence using her speakerphone. They spoke in another language. The officer heard the sister say “police” during the conversation with a male. The male then hung up. Several calls back to that phone number by the sister went unanswered in the officer’s presence.
[12] The officer does not know how “Neal Kumar” identified himself at the scene of the motor vehicle collision, nor how “Niloshan Selvakumanran” is associated to the name Neal Kumar.
[13] Constable Anderson did not show Nilosa Selvakumanran a photograph or body-worn camera video of “Neal Kumar” who is believed to be Niloshan Selvakumanran, to confirm that these names are used by the same person.
FINDINGS
[14] Accordingly, I accept the following as facts for the determination of this Application:
i. The Peel Regional Police properly obtained a subpoena for Neal Kumar to attend yesterday and today for this trial;
ii. Constable Anderson properly served the subpoena for Neal Kumar to Nilosa Selvakumanran, a person over the age of 15, on 21 January 2024 with the actual date and court for the witness to attend;
iii. Constable Anderson has made numerous efforts to notify Niloshan Selvakumanran of the requirement to come to court in response to a subpoena left for him at his residence at 84 Pebblestone Circle, Brampton;
iv. No one has responded to the page today for Neal Kumar or Niloshan Selvakumanran;
v. Neither Cst. Anderson, nor her colleague(s) who attended court yesterday and today for this trial have seen the male who initially identified himself as Neal Kumar, who is now believed to be Niloshan Selvakumanran;
vi. The male who initially identified himself as Neal Kumar, who is now believed to be Niloshan Selvakumanran, has material evidence to give for this trial; and
vii. The male who initially identified himself as Neal Kumar, who is now believed to be Niloshan Selvakumanran has not responded to the subpoena to attend court.
[15] Accordingly, I am satisfied on a balance of probabilities that the requirements of s. 705 of the Criminal Code have been met.
[16] I find that Niloshan Selvakumanran, also known as Neal Kumar, has been properly subpoenaed, he has material evidence to provide the court, and he has failed to attend in response to a properly issued subpoena requiring his attendance.
CONCLUSION
[17] Pursuant to my authority under s. 705 of the Criminal Code of Canada, a material witness warrant in Form 17, is issued for the arrest of Niloshan Selvakumanran, also known as Neal Kumar.
DATED AT THE CITY OF BRAMPTON THIS 30TH day of MAY 2024
The Honourable G. Paul Renwick Ontario Court of Justice