Court File and Parties

CITATION: R. v. Elansooriyanathan, 2016 ONSC 8129

COURT FILE NO.: CF-16-10000329-00BR

DATE: 20161223

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Nitharshan Elansooriyanathan

BEFORE: E.M. Morgan J.

COUNSEL: Jon McGrath, for the Crown

Sia Pashang, for the Applicant

HEARD: December 23, 2016

ENDORSEMENT – Bail REVIEW

[1] The Applicant has been charged with a number of offences, including robbery with a weapon, break and enter, theft under, possession of property obtained by crime and other related offences. He has no prior criminal record.

[2] After his arrest he was released on bail on January 28, 2016. His mother was his surety, and had pledged $500. The Applicant was at the time released under house arrest, subject to being employed and producing a work schedule every two weeks. He obtained employment at a Swiss Chalet restaurant and maintained that employment during the entire time he was out on bail.

[3] In March 2016, he was having tensions with his mother at home and she withdrew as his surety. He therefore lost his bail and was taken back into custody. That disagreement apparently dissipated after a few months, and on August 1, 2016, his mother advised the court that she was prepared to re-instate herself as surety. The Applicant was therefore released again on the same conditions as previously. His release was short-lived, however, and on September 21, 2016, his mother removed herself as surety once again.

[4] The Applicant next proposed changing sureties. His step-father, Sivakumaran Arumugam, with whom he apparently has a good relationship, volunteered himself as the new surety. The proposal was the same as previously, with the Applicant living in the same residence but with the step-father rather than the mother as the person responsible for him. This arrangement was rejected by Justice of the Peace S. Ng at a hearing on October 4, 2016, resulting in the Applicant being detained. In brief reasons, the Justice of the Peace stated:

I do have some concerns with this arrangement, especially when everybody lives together in one place with the mother that was a surety, revoked it three times, I don’t think this plan will work too well.

[5] The Applicant seeks review of the Justice of the Peace’s decision. His counsel indicates that there is now a material change in his circumstances – not only is his step-father still willing to be a surety and pledge $1,000, but his cousin, Krishnakumar Balasubramaniam, has come forward as a second surety willing to pledge an additional $1,000 to secure his bail. The cousin is also willing to supervise the Applicant and have the Applicant live with him in a spare bedroom in his apartment.

[6] The Applicant’s step-father is also willing to play a supervisory role with respect to the Applicant’s work. As it happens, the step-father works at a restaurant in the same plaza as the Swiss Chalet where the Applicant was formerly employed. Assuming that the Applicant can get his old job back – and he is confident that he can, since the restaurant has given him back his job each time his mother reinstated his bail – the step-father will be working next door and will keep an eye on him during the work day.

[7] Counsel for the Crown submits that this arrangement should be rejected for the same reason that the Justice of the Peace rejected it in October – that is, if the Applicant cannot get along with his former surety, he is likely not to get along with his current surety. The Crown points out that under cross-examination at the hearing before the J.P., the step-father explained the situation with respect to the previous surety arrangement. The Crown contends that the answers show that the Applicant is unlikely to adhere to the terms of his release:

A: She found it quite strenuous to be a surety because I would deal with him in a more tactful and affectionate manner. She would be more aggressive and she found it very stressful, and she relieved herself of being a surety.

Q: But it’s because he’s not listening to her that she pulled the bail?

A: Yes… She, she, she is very worried, and sometimes she is thinking very hard, and then she is shouting at him, and, uh, then she tells him different things, and she has not been able to handle that stress.”

[8] Crown counsel’s argument, to put it simply, is that the Applicant cannot adhere to the demands of his surety, and that that is a term of his release. Defense counsel’s argument, to put it simply, is that the Applicant never breached the terms of his release but rather his surety withdrew her support.

[9] What the transcript shows is not so much that the Applicant is at odds with a surety for his bail, but rather that he’s arguing with his stressed-out mother. His mother is obviously anxious about the situation, and it would seem that it is more her than him that is having a hard time dealing with it. The Applicant himself never violated his house arrest, nor his curfew, nor any other aspect or term of his release. He kept up his steady employment to the obvious satisfaction of his employer, and got into no legal trouble.

[10] With all due respect to the Crown’s position, I cannot keep a 26-year old man in prison because he won’t listen to his mom. The admonition to honour thy father and thy mother may be the Fifth Commandment (Exodus 20:12), but in Canadian law it’s really only recommended, not mandatory.

[11] That said, the proposal that the Applicant live with his cousin may be problematic. The cousin testified at the hearing before me and indicated that while he had a criminal record, he has had no run-ins with the justice system since the 1990’s. In cross-examination, Crown counsel put to him a print-out of his criminal record which showed that he had a conviction for assault in 2002 and another conviction for driving under the influence in 2012.

[12] The cousin indicated that he “forgot” about those two convictions. It is, however, a bit much to think that he couldn’t recall his two Criminal Code convictions over the past 15 years at precisely the time when it was important to remember them. Without meaning to stretch the biblical analogy too far, the Fifth Commandment may not be that important to modern courts but the Ninth – bearing false witness (Exodus 20:16) – definitely is.

[13] Crown counsel suggests that the Applicant’s cousin has proven himself untrustworthy, and it would not be appropriate for him to be the one that supervises the Applicant day and night in a house arrest situation. If anything, the Applicant should be under the supervision of his step-father, not the cousin.

[14] I agree with that proposition. The Applicant’s step-father impresses me as an honest surety who is by all appearances is a responsible person that cares for the Applicant enough to make every effort to keep him out of trouble. He states in his supporting affidavit that he is willing to have the Applicant continue to live with him, and that he will be responsible this time rather than his wife.

[15] I am willing to have the Applicant’s step-father be a surety with a $1,000 pledge and to include the Applicant’s cousin as a second surety with an additional $1,000 pledge. The Applicant’s cousin may not have been a very good witness, but he and the Applicant have known each other since childhood and it strikes me that the Applicant would not want to put his cousin’s money at risk. This, then, provides an additional layer of security to the release arrangement.

[16] In my view, the Justice of the Peace erred in considering it problematic that the Applicant was proposing to return to live with his mother when the problems with the mother were not necessarily related to the surety arrangement and, in any case, did not entail a breach of the terms of the Applicant’s release. Added to that error, the addition of a second surety, even an imperfect one like the Applicant’s cousin, is a material change.

[17] It was appropriate to grant the Applicant interim release last January and several times thereafter when his mother agreed to be his surety. He has now established that it is equally appropriate this time to grant him interim release with his step-father and his cousin as his sureties.

[18] The Applicant is to live with his step-father at his family home, under the same terms and conditions as when he was last released. His cousin shall be a second surety, and is to supervise the Applicant when the Applicant’s step-father is not available to do so. Each of these two sureties has pledged $1,000, which will provide some security for the Applicant’s adherence to the terms of his release.

Morgan J.

Date: December 23, 2016