COURT FILE NO.: CR-11-30000718
DATE: 20120720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NAVEEN ARIARATNAM
W. Thompson and L. Fineberg, for the Crown
C. Adams and A. La Bar, for the Accused
HEARD: June 14, 2012
M. DAMBROT J.:
[1] Naveen Ariaratnam was tried by me, with a jury, on a charge of second degree murder. He has now been found guilty, and is awaiting sentence. The Crown alleged that at 2:30 a.m. on November 27, 2010, the accused intentionally drove his SUV onto a sidewalk and directly at Vincent Dang, ran over Mr. Dang and killed him. This took place after a dispute between two groups of men in a club in the Entertainment District in Toronto, and two further verbal altercations outside of the club. The accused was a member of one of the groups, and Mr. Dang was a member of the other group. At a pre-charge conference, counsel for Mr. Ariaratnam asked me to put the defence of provocation to the jury. I concluded that there was no air of reality to that defence in this case, and refused the request, with reasons to follow. These are my reasons.
THE APPROACH
[2] I begin by saying that refusing to put a defence to a jury that has no air of reality is not an exercise of discretion. A trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. (See R. v. Cinous, 2002 SCC 29, 162 C.C.C. (3d) 129 at para. 51.) The test for determining whether or not a defence has an air of reality is well settled. In fulfilling this duty, the judge must determine whether there is an evidential foundation warranting that a defence be put to the jury. To do so, the judge must address a two-pronged question: is there (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question can be answered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. (Cinous, paras. 65 and 82.)
[3] In answering these questions, a trial judge must consider the totality of the evidence, and assume the evidence relied upon by the accused to be true. The evidential foundation can emanate from the examination in chief or cross-examination of the accused, defence witnesses, or Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. (See Cinous, para. 53.)
[4] Where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence (as here, where the defence of provocation has an objective reasonableness component), the question becomes whether the elements of the defence that cannot be established by direct evidence may reasonably be inferred from the circumstantial evidence. (See Cinous, para. 89.)
[5] The application of the test in this case is complicated. When an accused testifies, ordinarily the test requires the judge to assume that his or her evidence, and other evidence that supports the accused’s evidence, is true. Not here. To give effect to a defence of provocation, the jury would have to reject most of the accused’s evidence, but accept some of it, and also accept selective pieces of the evidence of other witnesses. This exercise of picking and choosing bits of evidence given by the accused, and given here and there by others is complicated. Still, the accused is entitled to the exercise being done with care.
[6] I turn to the evidence.
THE EVIDENCE
[7] It is beyond dispute that during the late evening of November 26, 2010, into the early hours of November 27, 2010, the accused and a group of five friends (referred to as the “Sri Lankan” group) were “clubbing” at the Rockwood, in the Entertainment District in Toronto. Another group of 20 or more young people (referred to as the “Asian” group) were celebrating three birthdays at the Rockwood that same evening. A dispute arose between individuals in each of the two groups, resulting in some pushing and shoving, a few punches, and the exchange of angry words.
[8] The accused testified that he saw this altercation. He saw one of his friends, Nathan, take a swing at a one of the Asian men and punch him in the face. When he took the swing, Nathan appeared to be drunk, and was acting like an idiot. The Asian man didn’t hit him back, and ran.
[9] As a result of this altercation, the accused’s group was ejected from the club, and soon after most of both groups were outside of the club. The two groups continued to exchange taunts, challenges to fight and obscenities, but were kept separate by bouncers from the club. One of the witnesses, Mr. Arocena, testified that this went on for 10 or 15 minutes. Other evidence is to a similar effect.
[10] The accused testified that outside the club, he and his friends encountered a group of 20 to 30 unhappy Asians, who were saying nasty things to his group and throwing things at them. Nathan was still acting like an idiot as well. Someone said to him something like, “I fucked your mother; You fucking Pakis; Why are you hiding behind bouncers – come and fight.” These words upset Mr. Ariaratnam, particularly the reference to his mother. At this point in time, Mr. Ariaratnam felt “pissed off.”
[11] The accused testified that he next remembered being pushed into a cab, he assumed by bouncers, but had no clear memory. Other people were in the cab as well, but he didn’t know who – again he had no clear memory. He said that the cab went a short distance, and then stopped, and he got out, ran to the SUV while being chased by a bunch of people, and got into the middle seat in the second row. Two of his friends got into the driver and front passenger seats. He said that he heard noise, but he didn’t know what it was. He also said that he heard banging on windows, hoods, and trunks. Nathan was not in the SUV at this time.
[12] The SUV moved somewhere, and then returned to the parking lot. Nathan and another friend, Deidre Moniz, then got into his row. The SUV then drove away. He was not driving. The accused said that he didn’t know what streets they were on, and didn’t remember stopping. He didn’t remember a verbal exchange with members of the Asian group along the way, and insisted that it never happened. He did remember the SUV turning onto Wellington Street West, and a male voice saying “wrong way.” At that moment it felt like the SUV was going to tip over, he heard screaming in the car, and then remembers the SUV driving away. He didn’t observe the SUV hitting anything.
[13] Needless to say, no defence of provocation could arise on this evidence. The accused did not testify that he was provoked into driving the SUV at the victim. He testified that he wasn’t even driving the SUV when it hit Mr. Dang, and although he was in the SUV, he was unaware that it hit anyone at the time that it happened. I must look to other evidence to support the defence.
[14] Mr. Cacao, who was one of the accused’s friends at the club that night, testified that he was also one of the men who were pushed into a cab, and that he too then got out of the cab and into the SUV. But according to him, the accused was the driver. He said that the accused drove out of the parking lot to Mercer Street, circled the block and drove back to the lot. When they returned, the Asian group was gone, and the police were everywhere. Nathan was still on the ground. The accused spoke to one of the bouncers through his window. With the assistance of one of the bouncers and another friend, the accused got Nathan into the car and, after speaking to the bouncer for a couple of minutes, and then a police officer, the accused drove away. Five other witnesses testified that the accused was the driver at this point in time. No one other than the accused says that he was not the driver.
[15] Mr. Cacao said that the accused made a left turn onto Blue Jays Way, and at the first laneway they encountered the same group of guys, and slowed down. The driver’s window was down, while the others were not. The group of guys saw the SUV, and words were exchanged. They said to come out of the car, and Mr. Ariaratnam said, “Come here, come here.” They did come towards the vehicle, and more words were exchanged. The accused then made a left turn onto Wellington. He was accelerating. The group also came around the corner on the sidewalk. The accused then made a wide U-turn, and the front wheels went onto the sidewalk.
[16] A security video shows that after going onto the sidewalk, the SUV came off the sidewalk to avoid hitting a lamp post, then immediately went back onto the sidewalk, directly towards the group of seven young Asian men. Six of these young men managed to get out of the way, but Mr. Dang did not. He was hit and killed. The driver did not brake at all before or immediately after the collision.
[17] Deidre Moniz, another friend of the accused who was at the club that night, testified that she got into the SUV after it circled the block the first time. She said that the accused was the driver. She then vaguely remembered the SUV turning west onto Mercer. She then remembered that someone threw something at the vehicle, presumably on Blue Jays Way, and she heard derogatory things being said to “provoke our group” and that the accused was provoked. She then remembered turning onto a narrow street, presumably Wellington, and heard the accused say “pussy” in Tamil. She vaguely remembered seeing a few Asian people at the turn. She then recalled the vehicle making a U-turn on Wellington, and gave her account of the collision.
[18] I do not need to fully recount the evidence of Francis Nguyen, one of the young men in the Asian group, except to mention his account of the encounter with the SUV on Blue Jays Way. He said that the SUV pulled up beside him and his friends at the alleyway and stopped. He said that the driver’s window was open, a small confrontation took place, that the driver said to follow them for a fight, and Mr. Nguyen’s group told him to get out of the car for a fight. Mr. Nguyen said that he approached the vehicle from the sidewalk onto the road and got to within 15 feet of the SUV, when the driver leaned out of the window and again said to follow him for a fight. The vehicle then drove towards him, and he and Mr. Dang had to jump out of the way. As the SUV drove away, Mr. Nguyen kicked the side of the SUV.
[19] Jonathan Arocena, another of the Asian young men, testified that he was also present for the encounter on Blue Jays Way. He said that he and his friends approached the SUV, which was rolling slowly along the street. The driver rolled down his window, and Mr. Arocena, Mr. Nguyen and the deceased approached him. The driver and the three men began badmouthing each other. They stood talking from a distance of only two feet from window, for less than a minute. Mr. Dang actually kicked the car, and then it started to move closer to Wellington. Someone from inside the car said, “come and fight.” As the SUV moved to Wellington, Mr. Arocena and his group did the same, thinking the car would park, and the occupants would come out and fight.
[20] Danilo Dapapa, another of the Asian men, testified that when his group encountered the SUV on Blue Jays Way, the driver’s window was down, and he drove slowly enough for the trash talking and obscenities to begin again. The driver drove into the north lanes closer to Mr. Dapapa’s group. Mr. Nguyen then threw a milk carton at the back of the vehicle, and Mr. Dang kicked the car near the driver’s side door. This encounter continued for a couple of minutes, while the driver headed towards Wellington. The driver then turned onto Wellington, talking to the group as he turned. When he turned, the group was on the north east corner.
ANALYSIS
[21] I considered the question whether there was an air of reality to the defence of provocation recently in R. v. Dupe, 2011 ONSC 3316, [2011] O.J. No. 2652. In my ruling, I discussed in some detail the elements of the defence. I do not propose to repeat my analysis of the elements of the defence found in those reasons. In Dupe, I concluded that I had to consider the following four questions:
Is there evidence of a wrongful act or insult?
Is there evidence that the wrongful act or insult would deprive an ordinary person of self-control?
Is there evidence that the wrongful act or insult actually deprived the accused of his self-control?
Is there evidence that the accused reacted to the wrongful act or insult quickly and before there was time for his passion to cool?
[22] Of course, when I ask, in each question, if there is “evidence” of the particular element, I mean, is there evidence upon which a properly instructed jury acting reasonably might at least have a reasonable doubt on the issue.
[23] I will ask myself the same four questions here.
Is There Evidence of a Wrongful Act or Insult?
[24] Undoubtedly, in this case, numerous insults were passed back and forth between the accused and his friends and the Asian group. It would take considerable mental gymnastics to pick and choose bits of evidence to form a narrative wherein the accused is the recipient, but not the maker of insulting remarks. No such scenario was advanced in this case. And while it is most unrealistic to separate out individual insults from this virtual continuum of insults made by the Asian group to the accused over a considerable period of time as the potential precipitating insults that provoked the accused to act murderously, I will assume that there are two. First, there are the remarks testified to only by the accused outside the club, when someone said to him something like, “I fucked your mother; You fucking Pakis; Why are you hiding behind bouncers – come and fight.” Second, there are the remarks made on Blue Jays Way at the encounter that the accused said didn’t happen, where the accused and the Asian men exchanged derogatory remarks. This may have been accompanied by a kick at the car, and a thrown milk carton.
Is There Evidence that the Wrongful Act or Insult Would Deprive an Ordinary Person of Self-Control?
[25] The answer to this question must be, surely not. While the remarks outside the club, and on Blue Jays Way might make an ordinary person angry, even very angry, and would make some people willing or even anxious to exchange blows over them, there is no evidence upon which a properly instructed jury acting reasonably might conclude, or at least have a reasonable doubt that an ordinary person, that is, a person who “has a normal temperament and level of self-control ... [and] is not exceptionally excitable, pugnacious or in a state of drunkenness” (see R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313 at 331), would be deprived of self-control by these words.
[26] Since I drafted these reasons, the judgment of the Supreme Court of Canada in R. v. Mayuran, 2012 SCC 31 was released. Mayuran concerned the very issue I am considering here: whether or not the objective element of provocation had an air of reality, or, in other words, whether or not the wrongful act or insult would deprive an ordinary person of self-control. The Court stated, at paragraph 26:
This Court has repeatedly reinforced the importance of the objective element. As Dickson C.J. said in R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313, “We seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility. In doing this, the law quite logically employs the objective standard of the reasonable person” (pp. 324-25), whom he defined as someone having “a normal temperament and level of self-control”, and as not being “exceptionally excitable, pugnacious or in a state of drunkenness” (p. 331).
[27] The Court held that a properly instructed jury could not conclude that an ordinary person in the circumstances of the appellant in that case would be deprived of self-control when ridiculed or scolded about her level of education to such a degree that she would stab the person who scolded or ridiculed her 45 times in a responsive rage. This fortifies me in my view that a properly instructed jury could not conclude that an ordinary person in the offender’s circumstances would be deprived of self-control when his mother and his ethnicity are insulted and he is then challenged to fight over a prolonged period of time after the insults to such a degree that he would run one of his antagonists down with his motor vehicle in a responsive rage.
[28] I remain of the view that there is no air of reality to this element of the defence of provocation.
Is There Evidence that the Wrongful Act or Insult Actually Deprived the Accused of His Self-Control?
[29] This element of provocation requires there to be some evidence that the accused's passion was inflamed, and that the inflamed passion was accompanied by a loss of self-control.
[30] There is absolutely no evidence that the accused’s passion was inflamed, or that he was deprived of his self-control by any of the insults that I have mentioned. He did not suggest that his passion was inflamed or that he was deprived of his self-control by the remarks he heard outside the club. He simply said that he felt “pissed off.” He denied being aware of any insulting remarks on Blue Jays Way, or that there was any confrontation at all on that street. There is nothing in the evidence about the accused’s driving that suggests that his passion was inflamed or that he lost self-control. None of the other persons in the SUV who testified suggested that he appeared to have his passion inflamed or that he appeared to lose self-control. While Ms. Moniz did say that the accused was “provoked” by the words of the Asian men on Blue Jays Way, she equated this with anger, not with inflamed passion or loss of self-control. Any doubt that a jury might have as to the accused’s guilt based on the accused becoming deprived of his self-control by the insults made by the Asian men would be based on nothing more than speculation.
Is There Evidence that the Accused Reacted to the Wrongful Act or Insult Quickly and Before There Was Time for His Passion to Cool?
[31] If nowhere else, any possible air of reality to a defence of provocation must founder here. This element of provocation has two aspects. As Weiler J.A. put it in R. v. Flegel (2005), 2005 CanLII 13775 (ON CA), 196 C.C.C. (3d) 146 at para. 16 (Ont. C.A.):
[...] the judge must be satisfied that there is evidence that the accused reacted to the wrongful act quickly and before there was time for passion to cool: Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313 at paras. 34-39. This suddenness must characterize both the insult and the retaliatory act. The provoked person cannot be prepared for the insult; such preparation would eliminate the possibility of a sudden burst of passion. Therefore, the court should consider the relationship between the accused and the deceased to examine whether or not the insult and the reaction were sudden: Parnerkar, supra.
[32] To paraphrase, both the insult and the response must arise on the sudden. In this case, none of the insults arose on the sudden. As I noted in Dupe, at para. 51:
“Sudden” has been defined rather broadly, in keeping with the scheme of s. 232. In Tripodi, Rand J. also stated, at p. 443, that the wrongful act or insult “must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame.” As Ryan J.A. put it in R. v. Gibson (2001), 2001 BCCA 297, 90 B.C.L.R. (3d) 247 (C.A.) at para. 81, in reference to the circumstances in that case, “nothing that occurred in the course of the ongoing transaction could be considered as having ‘made an unexpected impact on a mind unprepared for it.’” Sudden was defined most recently by Watt J.A. in R. v. Cudjoe (2009), 2009 ONCA 543, 251 O.A.C. 163 (C.A.) at paragraph 127, as follows: “In ordinary speech, ‘sudden’ means happening or coming without warning, unexpected, or unforeseen.”
[33] None of the insults directed towards the accused that were made almost continuously over an extended period of time could conceivably have taken the accused by surprise, have made an unexpected impact on a mind unprepared for it, or have come without warning, unexpected or unforeseen. In particular, the insults on Blue Jays Way could not meet this test. They followed a litany of insults, and on all the evidence they were precipitated, or at least enthusiastically participated in by the accused.
[34] The accused also has difficulty meeting the suddenness test in relation to his response. Obviously if his loss of control was in response to the insults made outside the club, they were not sudden. I am also dubious that his response to the insults on Blue Jays Way was sudden. The accused drove away, turned a corner, made a U-turn, and only then exhibited what he argues is a loss of control. I concede, however, that if this last impediment stood alone, I would likely leave the defence to the jury.
Disposition
[35] There must be an evidentiary basis for all elements of the defence of provocation in order for there to be an air of reality to it. (See, e.g., Major J.’s decision in R. v. Roberts, 2005 SCC 3, [2005] 1 S.C.R. 22.) Here, I concluded that there was no evidentiary basis for several of the elements of the defence of provocation. I therefore did not instruct the jury with respect to it.
[36] I did not, however, deprive the accused of resort to the evidence relied on by the accused in support of a defence of provocation. In the course of my charge with respect to the mens rea for murder, I stated:
On the other hand, being upset, angry or enraged, if it was intense enough, could cause a person to act without any regard to the consequences of his action at all. Such evidence, when considered along with the other evidence in this case, including intoxication, could raise a reasonable doubt about whether, when he unlawfully killed Mr. Dang, assuming he did, Mr. Ariaratnam had either state of mind required for murder.
M. Dambrot J.
RELEASED: July 20, 2012