THURSDAY, OCTOBER 8, 2015

R U L I N G

Dawson J. (Orally):

The issue before the court is whether on the evidence before the jury there is an air of reality to the defence, more properly described as the excuse, of necessity. The case for the Crown is concluded. Counsel for the accused has advised me that they will elect to call no evidence. A decision is required on an expeditious basis so counsel can prepare their addresses to the jury.

The test to be applied is described in detail in R. v. Cinous, 2002 SCC 29, at paras 47-57. Reference is made to the court’s prior judgement in R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595. Osolin was referred to in R. v. C.A.V. (2003) 2003 3548 (ON CA), 177 C.C.C. (3d) 332 (Ont. C.A.). That was a case where the issue, as in the present case, was whether there was an air of reality to a defence of necessity. I have found the comments of Feldman J.A. at para. 10 of that case to be instructive.

A number of issues have arisen in the context of this issue. Initially, I raised with counsel, before I had an opportunity to prepare for this case, whether an accused can raise necessity as an excuse in circumstances where the imminent peril said to give rise to necessity is the peril of a third party, as it is here. I am now satisfied that imminent peril to a third party can, in appropriate circumstances, give rise to necessity.

Necessity and duress are closely related defences that arise from common law, and which are preserved by s.8(3) of the Criminal Code. A number of the leading cases on duress make reference to this fact and discuss necessity and duress as related to one another such that they are said to be governed by the same juristic principles. See R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, at para. 54; R. v. Ruzic, 2001 SCC 24, at para. 64; and R. v. Ryan, 2013 SCC 3, at para. 17.

It is clear that a defence of duress may arise from threats made to third parties by a protagonist: Ruzic; Ryan at para. 57. Given the similar nature of the excuses of duress and necessity, and the fact that they are governed by the same juristic principles, there is no reason why peril to a third party should be excluded as the basis for a finding of necessity in an appropriate case.

Counsel for the accused have also referred in their factum to a number of trial level decisions in which necessity has been recognised as being available where there was peril to a third party. Most of these are driving cases where someone without a driver’s license, or who is impaired by alcohol, drove a vehicle where a third party was in danger, such as in a medical emergency.

Crown counsel has not argued that an imminent peril to a third party is incapable of giving rise to necessity.

I turn now to what is more in issue in this case.

It is common ground that there are three essential elements to the excuse of necessity:

1. There must be imminent peril or danger to the accused or, I would add, to a third party;

2. The accused must have no reasonable legal alternative to the course of action undertaken;

3. There must be proportionality between the harm resulting from the action taken and the harm avoided.

See R. v. Perka, 1984 23 (SCC), [1984] 2 S.C.R. 232, [1984] S.C.J. No. 40; and R. v. Latimer, 2001 SCC 1, at para. 27.

In the present case, Crown counsel concedes that the evidence meets the air of reality standard in relation to the third element of necessity. Therefore, the focus is on the evidence in relation to the first two elements.

In my view, it is helpful to analyse the problem before the court first from the perspective of Natheepan Rajendran, who is the third party said to be in imminent peril. After doing so, I will turn my attention toward the two accused.

What I have found to be a most troubling aspect to the problem before the court is that there is no evidence of any familial relationship between the accused and Natheepan. I have no direct evidence of any form of relationship between them other than of the two accused, each taking some steps to get, or attempt to get Natheepan into Canada using a forged passport in the name of Kogulan Anantharajah.

Counsel for the accused argue that there is some circumstantial evidence of a form of relationship which is of such a nature that it is sufficient to link the actions of the accused to being motivated by the perilous circumstances they submit Natheepan was in. I will discuss this below. First I will deal with whether there is an air of reality to the elements of necessity judged from the perspective of Natheepan. If there is not, then I need not go on to consider whether those considerations extend to the actions of the accused which are alleged to constitute the offence.

Before proceeding further I wish to note that during submissions, Crown counsel did not advance any argument to the effect that there was no air of reality to Natheepan being in imminent peril in Sri Lanka. Indeed, Crown counsel acknowledges that Natheepan has been granted refugee status in Canada and has cooperated with defence counsel in putting extensive written material before the jury by way of agreed facts concerning the finding that Natheepan is a refugee in need of protection. That material also includes agreed facts concerning the state of affairs in Sri Lanka and the dangerous conditions many Tamils face. Nonetheless, as the Crown does not expressly concede the point, I will address it.

Nor did Crown counsel advance any submission that there is not an air of reality to the second element of necessity, no reasonable legal alternative, in relation to Natheepan. Nonetheless, I will address this.

The Crown’s submissions all focus on the lack of evidence as to why the accused, who were not themselves in peril, acted as they did. Crown counsel’s submissions are focused on the fact that the accused have not testified that they were acting to save Natheepan from the imminent peril which he faced, and that they felt they had no reasonable legal alternative by which to assist Natheepan.

This position is supplemented by an argument that there is no evidence in the Crown’s case which provides a basis for the necessary inferences in that regard by the jury.

My chief concerns, after reflecting on the issue, have been similar to those raised by Crown counsel. I believe it will assist in properly explaining the reasons for my ultimate conclusion on this difficult matter to address the first two elements of necessity in relation to Natheenpan.

At the time Natheepan came to Canada, he was 13 years old. He was reaching an age where he was likely, based on the agreed facts and other evidence, going to start attracting more attention from the Sri Lankan authorities. It is common ground that his father went to work one day and simply disappeared. The evidence shows that many Tamil men, particularly in the previously war town north where Natheepan lived, have disappeared since the end of the civil war.

The documentary evidence filed, which is from credible and respected governmental and non-governmental sources, and has the status of agreed facts, establishes that many such disappearances are linked to activities of the Sri Lankan police, the army, and to para-military groups which support the government.

In addition there is evidence that Natheepan’s mother has been arrested without charge twice, held for two months or more the second time in a camp, and was beaten both times. There is evidence she and her family are thought by government authorities to be LTTE sympathizers or supporters. The documentary evidence filed as agreed facts is to the effect that young Tamil males in such families are most at risk of disappearance, arbitrary arrest, detention and torture.

There is also evidence that the police or military or para-military organizations were coming to Natheepan’s family home on a regular basis to search the house and question everyone there. The immigration adjudicator who heard Natheepan’s case found that the army had searched the house in December, 2012, just one month before Exhibit 9 was submitted to obtain the forged Canadian passport used to get Natheepan out of Sri Lanka on March 17th, 2013.

Time is too short to list or canvass all of the evidence which is available to support a reasonable conclusion that Natheepan was in imminent peril. In any event, while not using exactly these words, a finding to similar effect has been made by the Immigration and Refugee Board of Canada.

Mr. Grys acknowledges that there is no direct evidence that the Sri Lankan authorities or paramilitary was about to knock on Natheepan’s door and take him away. However, he makes the sound point that the nature of the peril or threat must be taken into account. If Natheepan or his family waited for the knock on the door, or until there was some other more urgent indicator of impending peril, it would by then almost certainly have been too late for Natheepan to have escaped.

I am satisfied that there is evidence in the record to support the conclusion that the indicators of a specific peril to Natheepan’s family, emanating from governmental authorities in Sri Lanka was mounting, and that as a young Tamil approaching manhood in a family suspected of connections to the LTTE, he was in imminent peril. In this regard I would apply, as a partial test, the words of Dickson J., as he then was, in Perka, at p. 251, quoted with approval in Latimer at para. 29, by asking myself whether the situation was so emergent “that normal instincts cry out for action and make a counsel of patience unreasonable”.

I am of the view that there is evidence capable of supporting a conclusion that Natheepan and his family were in such circumstances, judged from both a subjective and objective perspective.

Mr. Grys makes another submission that dovetails into the forgoing and segues into a consideration of the second element of necessity in relation to Natheepan. He points out that because Natheepan’s family was known and probably targeted by governmental authorities in Sri Lanka, planning was necessary to have any chance of success in getting Natheepan out of the country. Natheepan said his mother had been trying to do that unsuccessfully for some time.

In addition, Natheepan’s mother’s arrests had occurred in relation to travel plans. She was arrested the first time when she accompanied a relative to a Visa office. She was arrested the second time while travelling by train to Colombo in order to travel on to Switzerland in connection with her employment by UNICEF.

The documentary evidence filed also indicates that suspicion attaches to Tamils who travel within Sri Lanka and who travel or attempt to travel abroad. There is evidence that the Sri Lankan authorities associate travel abroad by Tamils with possible association with the LTTE.

The point is that the first and second elements of necessity need to be considered together in a case such as this. Waiting for the knock on the door eliminates any reasonable chance of escape. Planning is required.

Then, from the perspective of the second element, evidence related to the first element, shows that some form of fraudulent documentation would almost certainly be required to get Natheepan out of Sri Lanka. His family was a target. Travelling Tamils were suspect. Crown counsel very fairly conceded during submissions that the court should proceed on the assumption that Natheepan would have needed some form of official documentation or exit Visa in order to leave Sri Lanka. As I recall, Crown counsel indicated that would have to come from the Sri Lankan government. I conclude the evidence supports a potential inference that Natheepan would never get those documents.

Cumulatively, the evidence is capable of supporting the reasonable conclusion that Natheepan would need some form of convincing forged documentation to get out of Sri Lanka. This was not a situation where he could simply travel to Canada as a visitor and then make a claim for refugee status. The CBSA officers who testified confirmed that refugees arriving in Canada are often travelling on false documents. Section 133 of the Immigration and Refugee Protection Act prohibits Canadian authorities from charging someone who is granted refugee status with numerous offences related to false documentation, including under s.57 of the Criminal Code.

In summary, I conclude there is ample evidence to give an air of reality to the first and second elements of necessity in relation to Natheepan.

I turn now to whether these considerations can be extended to give an air of reality to necessity in relation to the two accused. As I have already indicated, I find this to be a more difficult issue and a close call.

Initially, I was inclined to the view that in the circumstances of this case, there was nothing in the Crown’s case which was sufficient to give an air of reality to the proposition that the two accused were motivated or acting on the basis of Natheepan’s perilous situation.

However, after careful reflection, I have come to the conclusion that there is just enough circumstantial evidence to give rise to a potential reasonable inference that they were. Whether to draw the inference will be for the jury. However, I conclude it could reasonably be drawn. I certainly do not think that the inference is a strong one, but the reasonable potential is there, and so it is for the jury to pass upon the question.

Context is important. I would point out that there is no evidence that the accused were doing what they did for profit or other selfish motive. In my view, that is critically important background that must not be lost sight of when evaluating what inferences are open based on the totality of the established circumstances.

I would add the following factors to be considered and evaluated:

1. The evidence is that Natheepan’s mother was desperate to get her son out of Sri Lanka. She had been trying without success for some time. She had approached Natheepan’s aunt, who was living in Canada, to help. She later personally introduced her son to Mr. Asipillai, and told her son he would take him to his aunt and uncle in Canada. This introduction took place at the home of another aunt in Colombo, Sri Lanka.

2. After Natheepan was released to the custody of the accused by CBSA officers at the airport on the early morning of March 18th, 2013, the accused immediately contacted Natheepan’s uncle in Canada and united Natheepan with his aunt and uncle.

3. Due to Natheepan’s age, if forged documents were to be obtained and successfully used to get him out of Sri Lanka, they had to be, or would work best perhaps, if they were issued in relation to a real person of about the same age. This is a matter of common sense. Common sense obviously plays a role in the inference drawing process. As Natheepan was a minor he would probably need to travel with an adult to avoid or reduce suspicion. For practical reasons he would need to be accompanied to a strange new country. He did not speak English. The evidence is Natheepan had never been on an airplane before.

4. Anantharajah Asipillai is a Tamil man who travelled to Sri Lanka on a Sri Lankan passport to get Natheepan. Natheepan’s photo was in a forged passport he carried. That photo must have come from Natheepan’s mother. Mr. Asipillai is also a permanent resident of Canada and had a card he travelled with to prove that. He was a member of the community well situated to assist Natheepan’s mother.

5. Mr. Asipillai has two sons that I am aware of. One was Kogulan, who was at least close in age to Natheepan’s age. Kogulan was 16 and Natheepan was 13. However, seeing Natheepan now, as the jury has, I would say he looks mature for his age. This offers some potential explanation for why these particular accused became involved in this case.

6. As Tamils, the inference is available that the accused would be acutely aware of the dangers faced by young Tamil men. That danger is reasonably well known even outside the Tamil community, based on the documentation filed. As counsel put it, the evidence supports a conclusion that there was fear in the community as a whole.

7. An inference is also available that the aunt and uncle in Canada, who were related to Natheepan and his mother, were the persons who contacted the accused.

8. Natheepan’s mother put her trust and her son’s life in Mr. Asipillai’s hands. She introduced them just a couple of hours before their flight. Natheepan testified she did not tell him previously so he could not know, in case they were apprehended on the way to Colombo.

9. Natheepan’s mother told him shortly before he left that he should be a good boy in Canada and study hard. He said that Mr. Asipillai later gave him exactly the same advice; not likely the type of advice to be given by a mercenary smuggler.

10. The evidence is open to the inference that a refuge claim was not advanced immediately upon arrival in Canada because Natheepan and the accused were not well versed in immigration laws.

11. As soon as Natheepan was united with his aunt and uncle, a refugee claim was advanced. That was done by returning to the airport the next day.

12. The fact that the CBSA officers released Natheepan to the custody of the accused and allowed all of them to leave the airport could be viewed as inconsistent with the accused being involved for other than altruistic reasons.

Similarly, the fact that Mr. Asipillai had Natheepan pose as his own son, Kogulan, posed certain risks for him, both in Canada and abroad, that could be viewed as unlikely to be taken by someone who was acting for profit.

These circumstances are capable of being viewed as more consistent with a member of the Tamil community who, with other members of his own family, was well situated and trying to help other community members and Natheepan’s mother, to extricate Natheepan from perilous circumstances that were becoming more concerning day by day as Natheepan became an adult and his family in Sri Lanka remained under suspicion.

I have not had the time to fine tune or hone or polish this list of factors. However, I have come to the conclusion that based on these and similar circumstances, established by the evidence, in the context of a complete absence of any evidence that the accused were acting otherwise than as concerned members of the Tamil community, the totality of the evidence is capable of supporting the inference that they were acting on the basis of necessity associated with the imminent peril to Natheepan.

I conclude there is an air of reality to the excuse of necessity, and I will instruct the jury accordingly.

FORM 2

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, Ryan Easson, certify that this document is a true and accurate transcription of the recording of, October 8, 2015, in, R. v. Asipillai and Anantharajah in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from the Recording(s) 3199_205_20151008_090815__30_DAWSONF.dcr which has been certified in Form 1.

(Date) (Ryan Easson)

Court File No. 14-603

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

ANANTHARAJAH ASIPILLAI

AND

SENTHURAN ANANTHARAJAH

R U L I N G

BEFORE THE HONOURABLE JUSTICE DAWSON

on October 8, 2015, at BRAMPTON, Ontario

APPEARANCES:

A. Chamberlain

Counsel for the Crown

B. Grys

Counsel for Anantharajah Asipillai

A. Datt

Counsel for Senthuran Anantharajah

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

RULING PAGE 1.

Transcript Ordered:

October 11, 2015

Transcript Completed:

November 15, 2015

Ordering Party Notified:

November 16, 2015