Case File No: CR-19-300000341
DATE: 20210506
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KATHIRGAMANATHAN SUPPIAH
Rosemarie Juginovic and Alex Penny for the Crown
Monte MacGregor and Amanda Warth for Kathirgamanathan Suppiah
Reasons for Judgment
MacDonnell, J.
[1] On March 1, 2021 the defendant Kathirgamanathan Suppiah appeared before this court for trial on an indictment charging that on December 12, 2017 he committed the second degree murder of his wife, Jayanthy Seevaratnam. Upon arraignment, the defendant pleaded not guilty. Pursuant to s. 473(1) of the Criminal Code, both he and the Attorney General consented to the trial proceeding without a jury. The defendant is before the court today for verdict.
I. Overview of the Case
[2] Both the defendant and the deceased (“Jayanthy”) were born in Sri Lanka. When they were young adults, they left the country due to the civil war and emigrated to Canada. In the late 1990s, Jayanthy’s mother arranged for them to be married. Their union produced two children, Sophia and Lageevan.
[3] At the time of her death, Jayanthy was 46 years of age, the defendant was 45, Sophia was 18 and Lageevan was 16. The family was living in a three-storey townhouse in a Toronto Community Housing project at 50 Empringham Drive in Scarborough. Sophia was a first-year student at the Scarborough campus of the University of Toronto and Lageevan was in high school.
[4] Jayanthy was employed as a lunch supervisor at a neighbourhood elementary school. She may also have worked for a time as a cleaner. The defendant had been unemployed for several years. The only income that he brought into the family home were disability benefits that he was receiving as a result of injuries suffered in a motor vehicle accident some years earlier. Jayanthy was responsible for managing the family’s income and for paying all the bills and expenses.
[5] The injuries that the defendant had suffered in the motor vehicle accident may have been part of the explanation for his unemployment, but the more substantial reason was his long-standing and serious addiction to alcohol. He drank to the point of intoxication virtually every day. Jayanthy did not drink, and she was concerned about the defendant’s alcohol abuse. Nonetheless, she would regularly accompany him to the LCBO, sometimes more than once a day, where she would purchase his daily supply of beer and vodka.
[6] There is evidence, which I accept, that the marriage between the defendant and Jayanthy was unhappy and that for years the defendant had been verbally, emotionally and occasionally physically abusive toward her, especially in the final months of her life. There is no evidence that she had ever been abusive toward him.
[7] On the morning of December 12, 2017, Sophia left the house shortly before 8 a.m. to drive to her morning classes at the university. Lageevan left for school at 8:22 a.m. When Sophia returned, at 1:35 p.m., and entered the house, she called out for her mother but received no response. She continued to call out as she made her way up to the second floor and then to the third, where the bedrooms are located, but still no one responded. When she reached the landing at the top of the stairs, she looked to her left into the master bedroom. She could see the defendant sitting on the floor, with his legs crossed in front of him, staring at a closet. From long experience with his drinking, she recognized that he was intoxicated. She asked where her mother was, and he pointed across the hall and said: “She’s sleeping in your room”.
[8] Sophia went to her bedroom, opened the door and discovered her mother lying unconscious on her back in the small space between the end of the bed and the bedroom closet. Sophia attempted to wake her up by shaking her head and rubbing her shoulders. She could see obvious signs of trauma to her face and head. When Jayanthy remained unresponsive, Sophia called 911. At the direction of the 911 operator, she performed CPR until the paramedics arrived and took over. They too noted signs of trauma to Jayanthy’s face and head. Notwithstanding the efforts of Sophia and the paramedics, Jayanthy remained vital signs absent. She was taken by ambulance to hospital where, at 2:45 p.m., she was pronounced dead.
[9] At the time of the postmortem examination, it was discovered that in addition to the injuries to her face and head, Jayanthy had suffered trauma to her neck and chest, that she had several broken ribs, and that her liver had been lacerated. From a medical point of view, the latter injury was the most significant because it led to the internal bleeding that caused her death.
[10] The position of the Crown is that all the injuries that Jayanthy suffered were intentionally inflicted by the defendant, that one of those injuries – the lacerated liver – caused her death, and thus that the death was a homicide. The Crown’s position, further, is that there was no lawful justification or excuse for the infliction of any of the trauma suffered by Jayanthy and thus that the homicide was a culpable homicide. Finally, the Crown submits that the defendant either meant to cause Jayanthy’s death or he meant to cause her bodily harm that he knew was likely to cause her death and thus that the culpable homicide was murder.
[11] The defendant conceded that most if not all the injuries to Jayanthy that were observed at the time of the postmortem examination were suffered in the course of an interaction between them on the afternoon of December 12. However, he denied that he assaulted her or that he intentionally inflicted the force that fractured her ribs and lacerated her liver. His position was that Jayanthy assaulted him, and that the minimal force that he applied in response was justified by way of self defence. He suggested that some of Jayanthy’s injuries were self-inflicted, and that the fracturing of her ribs and the laceration of her liver occurred when he accidentally dropped her while he was carrying her after she had fallen down. Accordingly, he submitted that he is not guilty of any offence. In any event, he argued, even if he caused the death of Jayanthy unlawfully, the Crown has failed to prove beyond a reasonable doubt that he had the intent that would make that unlawful death murder.
II. The Defendant’s Account of the Death of His Wife
[12] I will begin with a review of the testimony of the defendant in relation to what happened between him and his wife on the day she died.
[13] The defendant testified that he had been engaged in litigation to recover damages for his motor vehicle injuries and that his lawyer had scheduled a telephone settlement conference for the afternoon of December 12. The defendant said that he expected to receive a large sum of money as part of the settlement.
[14] On the morning of December 12, he woke just before 7 a.m. He testified that he felt that he needed a drink, and so he went downstairs and opened a beer. As he drank his beer, Sophia and Lageevan got up and got ready for school. Jayanthy continued to sleep in the master bedroom.
[15] There is a security camera affixed to the building across the street from the defendant’s townhouse, and the front door of the townhouse is squarely within its field of view. The entirety of the footage from that camera from 7:00 a.m. to 2:30 p.m. was entered into evidence. Images of everyone who exited from or entered into the townhouse in the course of those 7½ hours were captured in the footage. It shows that Sophia left for school at 7:53 a.m., after hauling the garbage bin down to the curb, and that Lageevan left at 8:22 a.m.
[16] The defendant testified that after the children left, he went upstairs to speak to Jayanthy. He found her sleeping in the master bedroom. He said that her purse was on the bed, beside her head. He picked up the purse and opened the zipper, looking for his bank card. He testified that as he did this, Jayanthy woke up and tried to wrest the purse away from him. He resisted those efforts and they had what he described as “a small argument”. She told him that there was no money in the purse and questioned why he had started drinking so early in the day. He testified that in the course of the struggle over the purse, she scratched him at least twice, once on his head and once on his hand. He said that he was “scared”, and that he dropped the purse, smiled at her, left the bedroom and went downstairs.
[17] He said that about 10 or 15 minutes later, Jayanthy called down to him that she would get dressed and go with him to the LCBO, and told him to call a taxi. It is common ground that she had not been feeling well for at least a week and he testified that when she came down the stairs, she was having difficulty standing. She said to him: “Do you require this beer urgently? So, when you get the settlement today, you will have to get rid of this habit and start a new life.” He said that he agreed to work on his alcohol problem.
[18] The security video shows that the defendant and Jayanthy left for the LCBO at 10:10 a.m. and that they returned at 10:28 a.m. Jayanthy had purchased three cans of Faxe beer and two small bottles of vodka for him. He testified that upon their return he sat on the stairs and drank one of the bottles of vodka and part of a can of beer. He said that Jayanthy sat with him, with her head either on his lap or at his feet, that they kissed and cuddled for about 10 or 15 minutes, and that they talked about their dream to use the settlement money to put a down payment on a house. He said that Jayanthy assured him that he was a good husband and that she only yelled at him because of his drinking.
[19] The defendant remained in the house for about 45 minutes. At 11:18 a.m., he left in a taxi to visit a friend, “Bill”. He testified that Jayanthy paid for the taxi with her debit card, and that she gave him cash to pay for a return trip home. The security video shows that before the taxi left, she came out of the house and had a two-minute conversation with him. After the taxi left, she pulled the now-empty garbage bin back up to the front of the house. She did not appear to be experiencing any physical difficulty in doing this.
[20] The defendant testified that when he arrived at Bill’s, he met up with two other acquaintances: Shivamogan Shivaprakasam and Uruthuramoorthi Kanacasabai. Mr. Kanacasabai has been referred to in this trial as “Moorthi”. The defendant remained at Bill’s for less than an hour, during which time he consumed at least two beer. At 12:19 p.m. he returned home, accompanied by Mr. Shivaprakasam and Moorthi. He testified that he, Shivaprakasam and Moorthi sat in the living room and watched television and drank beer. He believed that Jayanthy was upstairs on the third floor. He said that Moorthi was ‘piss drunk’ and aggressive, and that he had gotten into a quarrel with the taxi driver on the way over to the house.
[21] At 12:48 p.m., just under 30 minutes after they had arrived, all three men left the house in a taxi. The defendant claimed to have no memory of getting into the taxi and leaving with the other two men. His belief, which was clearly mistaken, was that he had stayed behind when Shivaprakasam and Moorthi left. In any event, the defendant was not gone long, because the security video shows that at 12:54 p.m., about six minutes after he had left, he returned alone and entered the house. There is no dispute that he and Jayanthy were now home alone.
[22] The defendant testified that at this point – approximately 1:00 p.m. – he began looking for some documents in preparation for the settlement conference that was to occur later that afternoon. He said that he could not find his handbag, which apparently held some of the needed documents. He said that he went upstairs and found Jayanthy sleeping on the floor in Sophia’s room, in the space between the end of the bed and the closet. He said that this was not unusual, that Jayanthy would often sleep there because she found it more comfortable. He sat down on the end of the bed, facing toward Jayanthy and the closet. The only sign of injury that he observed was “a small scratch … close to the ear, where [her] earrings would be”.
[23] He said that he asked Jayanthy if she knew where his bag was. He also asked whether there was any more beer. He asked this, he said, because sometimes Jayanthy would hide beer from him. He testified: “When I asked this, the first thing she did, she got up and scratched on both sides of my face”. He said: “I did not respond, but at the time I [had] a letter of settlement in my hand and was looking at it… First time, she scratched me and then went back to sleep.” He said that he remained seated at the end of the bed, reading the settlement letter. He testified: “Then she got up, she did not stand up, but she got up halfway from lying down. Then I was bending down like this, lowering my head. And then she scratched me again and scratched on my head as well. Then only I pushed her away, swinging the left hand.” He said: “I tapped her on the hand, I pushed her hand. I was still seated”. He said that he remembered her staring at him, saying that she had a burning and itching sensation in her head, complaining that she was suffering, and saying: “At this juncture, are you looking for fucking beer?” He testified that she was talking in a loud voice and that she said that she was going to die. Then, she deliberately banged her head against the wall and got to her feet.
[24] The defendant said that he was shocked by Jayanthy’s behaviour. She said to him: “You’re not getting angry, why are you sitting down, get up”, and then “she hit me on my head; I heard the noise of something breaking up, but I did not feel the pain at that time.” She had broken Sophia’s Christmas cup over his head. He said that he got up and started laughing, which only made her angrier. She said “oh, I didn’t hurt you yet?” and came toward him brandishing a shard of the broken Christmas cup. He asked: “Why are you doing this, is there a loose nut in your head?”. He said: “We were talking in filth. It all ended very quickly. I can’t elaborate any further.” He denied calling her a bitch but conceded that he may have called her a “pundai”, which is a Tamil vulgarity for female genitalia.
[25] He testified that he was not in a position to run away, and so he tried to grab the fragment of the cup from her hand. He said: “And then I hit her, I believe I grabbed her and hit her at the same time. It happened so quickly. I am not sure where I hit her, it might have been on the stomach or on the back [pointing to the left side of his ribs], then the cup fell down and I slowly pushed her away…” He said that he hit her “because she was like a tiger, and I had no other option on how to grab the cup from her, and so I was left with no other option… I grabbed her and embraced her and grabbed her hand and then only the cup fell down.”
[26] At this point, he ran from Sophia’s bedroom, across the hallway past the bathroom, and into the master bedroom, with Jayanthy in pursuit. The bathroom has two doors, one in the master bedroom and one in the hallway between the bedrooms. In his effort to escape, he ran into the bathroom from the master bedroom and continued through into the hallway, closing the door behind him. As he began descending the stairs, he heard a loud noise, like that of someone falling down. He testified that Jayanthy called to him: “Come here”. He said that he tried to open the bathroom door from the hallway but it would not open and so he went to the other door inside the master bedroom. He found Jayanthy lying on the floor of the bathroom, holding her hand in the area of the left side of her ribs. She called him ‘appa’, which means ‘father’ in Tamil, and told him: “I feel like something is broken, come and lift me.”
[27] In response, the defendant testified, “I lifted her, I was holding her when I lifted her up, then she hit on my lips with her left elbow”. He said that this made him angry and he dropped her. He said that Jayanthy had not expected to be dropped, that she was not prepared for the fall, and that she landed on her stomach on the bathtub. He said that “she started yelling again,” and that he told her “nothing is being broken, you can get up and come”. Then she said, calmly, “I feel something wrong, please come.” He testified: “I grabbed her. Before I lifted, I had opened the door, I was holding her and she was walking, she was grabbing with her left hand stomach [sic]… I grabbed her… her hands were behind me… I was holding her, I told her ‘this is a good day and you made it bad’. I left her beside the closet and told her to sleep and I went out. I said to her ‘if you want to go to the doctor, in the evening you can go to the doctor because you already have an appointment’. I asked her if ‘you feel anything’, she said ‘I’m going to sleep’, she said something else – ‘I am fainting’ – something like that, but I don’t remember”.
[28] He estimated that the altercation had lasted 8 to 10 minutes and that it ended 2 to 3 minutes before the return of Sophia. He said that while it was going on “I was scared and I was sweating…” He said: “She appeared to be in a position where she wants to kill me...”
[29] He said that after leaving Jayanthy lying on the floor in Sophia’s room, “I closed the door and I started thinking ‘why did I come, I had come for the black bag and beer’. I was looking for the bag. I went up to the kitchen, and then came [back to Sophia’s room] and I opened the door. I called and asked, she was motionless. I thought she was asleep, so I went closer to her and lifted her up. I tried to shake her up but she wouldn’t wake up. I was crying and I lifted her and I was trying to make her in a sitting position… There is a small stool in the room. My wife is a short person so she would use that footstool to climb up to get stuff. The stool was by her side where she was sleeping, I did not observe that because when I lifted her and was crying maybe sometimes that would have struck her as well…”
[30] The defendant testified that while he was in the bedroom with Jayanthy, he heard Sophia come into the house. Although he did not say so explicitly, it was implicit in his testimony that by this time he believed that Jayanthy was dead. He came out of the bedroom into the hallway and yelled: “Who is this? Is it Sophia?” Sophia responded: “Yes daddy, what?” He testified that he then told her “it appears that your mom has fallen down and she’s not talking, call 911.”
[31] The defendant was asked why, knowing that Jayanthy was dead, he would tell Sophia that her mother was sleeping and allow her to go into the bedroom. He responded: “I was sad and unhappy and I could not say anything to my daughter, I could not say anything to my daughter, because when a kid is coming from university, after studying how can I say to her ‘your mom is dead’. That’s the reason I said ‘your mother may have fallen, she’s not talking, she may be asleep’. Based on that she can guess what the daddy is saying … The reason I said that is so that she would understand what would have happened…”
[32] Toward the end of cross-examination, unsolicited, the defendant volunteered a theory of what had happened on December 12, 2017. In essence, it was that Jayanthy was very sick, she knew that she was about to die, and she set up a scenario within which it would appear that he had assaulted her. He stated:
At this point I want to say something for your Honour’s attention. My wife usually says: ‘You have to give up drinking. I won’t live for a long period of time, but on the day she died I will send you to jail, I will make sure you won’t drink anymore’ [sic]. She said that statement several times in front of my kids. Then my kids will ask me: ‘Mother, how can you do that?” Then the mother will say, she will look up to the heaven and pray to god, ‘I better I fall and die, get bedridden and die, give me an indication that I am going to die today’. Then what she will do is that day morning we were happy, she brought me a lot of drinks to drink, she scratched me, ‘if I die when the police comes and sees, there will be scratch marks on the father, then the police will think that mother and father had a quarrel and the father killed the mother’. The kids say, after saying that, ‘how is mommy’s master plan?’ Then my son will be next to me on the dining table and my daughter will be there too, then my son will ask: ‘Daddy, you married this woman? What is wrong with you?’… My daughter would say: ‘Daddy, good luck’.
[33] He continued:
She would utter these things at least twice or three times a year, it could be more than that. My kids know about this, what I am trying to tell you right now, when I went to the room and she scratched me twice, first time she scratched me and went to bed, then she got up and again scratched me. Can you all just pay attention to that please? I believe that she already felt that because of her sickness she was not going to live long. I am thinking that because of that only she might have scratched me. She will say that she will do it and do it and she will swear upon god using the children. This looks like a big game and my wife has won.
[34] The account provided by the defendant of his interactions with his wife in the hours leading up to her death was meant to support his position that at no point did he assault her, that on both of the occasions when he did strike her, it was in self defence and involved minimal force, that some of the injuries Jayanthy suffered may have been self-inflicted, and that the most serious injuries – the fracturing of the ribs and the laceration of the liver – were the result of accidents for which he was blameless.
[35] I agree with the defendant that if events unfolded in the manner in which he described, he did not commit any offence and he should be found not guilty. However, when his testimony with respect to what happened between him and Jayanthy on December 12 is considered in light of all the evidence, the only reasonable conclusion is that it is a fabrication. It is an account that the defendant has cobbled together in an effort to innocently explain the web of incriminating circumstances pointing to him as the author of an assault on his wife.
[36] I will discuss the flaws in the defendant’s account in greater detail later in these reasons. For the moment, I would summarize those flaws as follows:
(i) his account is inconsistent with the evidence of the pathologist with respect to Jayanthy’s multiple injuries;
(ii) his account is inconsistent with the physical evidence within Sophia’s bedroom;
(iii) his account is inconsistent with Sophia’s testimony;
(iv) his account is inconsistent with statements he made to the police officers who dealt with him at the scene, to the homicide detectives later that night, and to his friend Mr. Shivaprakasam two days later;
(v) his account is inconsistent with other undisputed evidence; and
(vi) his account rests upon a highly improbable picture of Jayanthy’s behaviour.
[37] A rejection of the defendant’s response to the circumstantial case presented by the Crown does not mean that the inferences that the Crown urges the court to draw from the circumstances must necessarily be drawn. The burden is on the Crown to satisfy the court that the guilt of the defendant is the only rational inference to be drawn from the totality of the evidence. The rejection of the defendant’s explanation does not alter that burden. Accordingly, I turn now to the evidence from which the Crown submits an inference of guilt should be drawn.
III. Was the Death of Jayanthy Seevaratnam a Culpable Homicide?
[38] Dr. Kono Williams, a forensic pathologist, performed the postmortem examination of the body of Jayanthy Seevaratnam on December 13, 2017, the day following Jayanthy’s death. The unchallenged opinion of Dr. Williams is that Jayanthy died from the loss of blood associated with a large laceration to the right lobe of her liver, and that the laceration was caused by blunt force trauma to her chest and abdomen.
[39] In the course of the postmortem, Dr. Williams observed other injuries to Jayanthy that did not meaningfully exacerbate the loss of blood and that would not in themselves have been fatal. The right side of Jayanthy’s face was swollen, she had two bilateral periorbital hematomata (“black eyes”) and there was a patterned injury in the area of her left temple and upper cheek that extended into the hairline. Within that area of injury were three sharp-edged lacerations. Dr. Williams found contusions and lacerations over Jayanthy’s scalp and ears, including a large bruise on the side of the head over her right ear. There were two injuries to her neck – a bruise to the left front and an abrasion on the right front – and two contusions on her chest.
[40] All of these injuries, in Dr. Williams’ opinion, were “recent” and “vital”. Recent means that they occurred within hours of death; vital means that they occurred while Jayanthy was alive.
[41] In addition, Dr. Williams discovered that Jayanthy had suffered multiple rib fractures. Some of these fractures were attributable to the CPR that had been performed by Sophia and the paramedics in their attempts to save Jayanthy’s life. However, a number of them were hemorrhagic – that is, bleeding – which meant that they occurred while Jayanthy was alive and thus were not caused by the CPR. The hemorrhagic fractures were to the second to fifth ribs on the right side and to the second rib on the left side.
[42] Dr. Williams testified that the laceration to Jayanthy’s liver was not caused by one of the fractured ribs. She testified that it would have taken a significant amount of force to fracture the ribs. It would also have taken significant force to lacerate the liver. She was unable to say whether the fractures and the laceration were caused by one or more than one impact.
[43] In cross-examination, Dr. Williams was asked to consider a hypothetical in which Jayanthy was lying on the floor, on her left side, with her right side pointing toward the ceiling as a heavy man fell onto her. Dr. Williams accepted that sufficiently significant force could have been generated in that scenario to fracture the ribs and tear the liver in one impact. As it turns out, there is no evidence that the defendant fell onto Jayanthy in the course of their interaction on December 12. In any event, Dr. Williams opined that in light of the multiple additional injuries to Jayanthy’s head and face, the hypothetical scenario suggested by the defence was an unlikely explanation for the rib and liver injuries.
[44] Dr. Williams was firm in her opinion that the two black eyes were the result of separate and independent applications of force and that neither of those injuries was caused by a fall or a contact with a flat surface. As to the cause of any of the other injuries, Dr. Williams could not be more specific than to attribute them to blunt force trauma. She agreed that, apart from the black eyes, each of the injuries, considered in isolation, could have been the result of a fall to a hard surface. However, she stated, “the distribution of the injuries is not in keeping with a fall/falls …The constellation of injuries suggests that there was some sort of assault, because many of the injuries are located around the head, the neck and the face, and if someone were falling multiple times, I would expect to see injuries on the extremities… If you were going to fall forward, your instinct is to put your hands out, or if you are going to stumble you may hurt your limbs, your lower legs, so I didn’t see any of those types of injuries.”
[45] In her cross-examination of the defendant and in her final submissions, Crown counsel suggested that the assault on Jayanthy had begun with an attempt to choke her. In my opinion, there is no evidentiary support for that suggestion. There were two injuries noted on the front of Jayanthy’s neck – a bruise on the left and an abrasion on the right. In cross-examination, the following exchange occurred:
Q. My understanding is that as you looked at [these injuries], they’re not what you would typically see if you were attributing them to someone choking Ms. Seevaratnam, am I right?
A. So, there was no sustained pressure on the neck. When we look at individuals who have been manually strangled, so if someone were to put their hands around someone’s neck to strangle them or to choke them…you often see multiple injuries on the neck as well as petechial hemorrhages, which are small pinpoint hemorrhages you see sometimes around the eyes, the inside of the eyelid, on the face, and although she did have a few of those they were not what I would describe as florid, so I did not see evidence that there was sustained … pressure on the neck. The injuries on the neck themselves could very well have been from either an impact or somebody pushing on her neck or jaw, but it wasn’t a sustained pressure.
Q. So if somebody were to push on her with force in that region, that would be sufficient to generate the wounds that you observed, possibly?
A. It could, yes.
[46] As I understand that exchange, Dr. Williams was unable to posit an attempt to choke as a reasonable interpretation of the observations that she made of Jayanthy’s head and neck. There is no other evidence that might support an inference of such an attempt.
[47] There was no evidence, from either the postmortem examination or the subsequent histology, of any significant natural processes that could have contributed to Jayanthy’s death. Dr. Williams was aware of reports that Jayanthy was not feeling well, but she could find no medical evidence to support why that was the case. Dr. Williams was asked about the potential impact of a number of medical disorders, but there is no evidence that Jayanthy had any of those disorders.
[48] As I have said, there is no dispute that Jayanthy bled to death from the laceration to her liver, and that the laceration was the result of blunt force trauma to her chest and abdomen. If the trauma was inflicted by another person, whether intentionally or accidentally, that person caused the death of Jayanthy, and thus committed homicide.
[49] Before Sophia left for school on the morning of December 12, she had made her bed and stacked the pillows on top. Her Christmas cup was intact on the small table at the head of the bed, a waste basket was upright near that small table, and the sliding closet door at the foot of her bed was on its track. Jayanthy had recently taken to having naps on Sophia’s bed. When Sophia returned at 1:35 p.m., the bed was unmade, the waste basket was on its side with its contents spilling out, the Christmas cup was in pieces on the floor, Jayanthy was lying unconscious on her back in the small space between the foot of the bed and the closet, her head was near the closet door, which had been knocked off its track, and a large blood stain was on the floor beside that track.
[50] The combination of those circumstance with the medical opinion of Dr. Williams and common sense leads inexorably to the conclusion that the force that caused the multiplicity of recent injuries to Jayanthy’s face, head, neck, chest, ribs and liver was inflicted by someone in the course of an altercation within Sophia’s bedroom. There is no other rational inference to be drawn from the evidence. It is fanciful to suggest, as the defendant did, that some of the injuries may have been self-inflicted. The injuries cannot reasonably be explained by either an accidental fall, or multiple accidental falls. Although Jayanthy had not been feeling well before her death, there is nothing to suggest that she was susceptible to falling. On the morning of December 12, the video footage shows her walking from the house to a taxi at 10:09 a.m. and returning at 10:28 a.m. It also shows her leaving the house to have a conversation with the defendant at curbside at 11:16 a.m., and then pulling a large garbage bin up to the house through the snow at 11:18 a.m. Her posture, stability and gait on each of those occasions appears normal.
[51] I am satisfied beyond a reasonable doubt that in the course of intentionally applying force to Jayanthy someone caused her death and thus committed homicide. Apart from the testimony of the defendant, which I have rejected, and which does not leave me with a reasonable doubt on the question, there is no evidence of a lawful justification or excuse for the application of force and thus the person who applied the force caused her death by means of an unlawful act and committed culpable homicide. The question that must next be addressed is whether the Crown has proven that the person who committed that culpable homicide was the defendant.
IV. Who Assaulted Jayanthy Seevaratnam?
(a) the defendant’s exclusive opportunity
[52] Prior to the testimony of the defendant, the question of whether anyone besides him had an opportunity to cause Jayanthy’s injuries was potentially a live issue. The defendant’s testimony, however, put paid to any suggestion of an alternate suspect. In essence, he testified that he was alone with Jayanthy between 12:54 p.m. and 1:35 p.m., and that as of 12:54 p.m. she had not yet suffered any of the multiple injuries observed by the pathologist. In light of those admissions, I will only briefly touch upon the evidence that, in the absence of the defendant’s testimony, would have led me to the same conclusions.
[53] The only doorway into the defendant’s townhouse was at the front, facing Empringham Drive. The living room had sliding glass doors that opened onto a fenced and gated back yard, and presumably a person could gain access to the premises by that route, but there is no evidence that the back yard was used generally as a means of ingress or egress.
[54] The footage from the security camera affixed to the building across the street captured images of everyone who went through the front door over the course of the 7½ hour period between 7:00 a.m. and 2:30 p.m. on December 12, 2017. Unless someone had circled around behind the entire row of townhouses, walked through the gated back yard, and entered into the living room through the sliding glass doors, the only persons inside the premises between 12:54 p.m. and 1:35 p.m. were the defendant and Jayanthy.
[55] Jayanthy was last seen on the video footage entering the house at 11:18 a.m., after hauling the large garbage bin through the snow from the curb to the front of the house. She did not appear to be having any difficulty doing this. At 11:37 a.m., Jayanthy sent a text message to Sophia asking what time she would be finished school and at 12:29 p.m. Sophia responded “1:30”. At 12:34 p.m., Jayanthy replied: “Ok amma.” “Amma” is a Tamil term of endearment. It would be unreasonable to think that Jayanthy sent that last text message after she had suffered the grievous injuries that I have described.
[56] Thus, if someone other than the defendant caused Jayanthy’s injuries, it had to have been done between 12:34 p.m. and 12:54 p.m. If an assault by someone other than the defendant occurred in that time frame, there are three possibilities: (a) Mr. Shivaprakasam did it; (b) Moorthi did it; or (c) a stranger who broke into the house from the backyard did it.
[57] There is no evidence of any prior animus between Mr. Shivaprakasam and Jayanthy. Indeed, they seemed to have a warm relationship. The defence never suggested to Mr. Shivaprakasam that he had anything to do with Jayanthy’s injuries. Moorthi did not testify in this trial. According to Mr. Shivaprakasam, he was killed in a car accident at some point after December 12, 2017. The defendant testified that Jayanthy did not like Moorthi and that there was prior bad blood between him and Moorthi. He also testified that at one point between 12:34 p.m. and 12:48 p.m. Moorthi went up to the third floor, where Jayanthy was apparently sleeping, to use the bathroom. The defendant did not report hearing any commotion upstairs, but he claimed he would not have been able to hear anything because he had gone to the basement in search of more beer. Mr. Shivaprakasam testified that he was not aware of any issues between Moorthi and Jayanthy and that neither he nor Moorthi went upstairs to use the washroom that day. If Moorthi had gone upstairs and committed a violent assault on Jayanthy, Mr. Shivaprakasam, one floor below, was somehow oblivious to it.
[58] Any suggestion that a stranger – presumably a burglar – might have broken into the house and attacked Jayanthy would be fanciful. As I have said, if someone other than the defendant assaulted Jayanthy, that person had to have done it after 12:34 p.m. and prior to 12:54 p.m. The only time when the defendant was out of the house in that time frame was in the six-minute interval between 12:48 p.m. and 12:54 p.m. On a break-in scenario, within that narrow window of opportunity the burglar would have had to come through the snowy back yard, opened the rear sliding doors, gone upstairs, encountered Jayanthy, beat her to death, gone back downstairs, exited through the rear sliding doors (being careful to close them behind him), and to have done all of this without leaving any clue that he had been present.
[59] The possibility that Moorthi, Shivaprakasam or a stranger could have been the perpetrator of the assault on Jayanthy was already remote before the defendant testified, but the implicit admissions in the defendant’s testimony make it clear that whether or not any of those alternate suspects could have committed the assault, none of them did commit it. He testified that when he went into the bedroom and sat down on the end of the bed, right beside where Jayanthy was sleeping, the only sign of injury he observed was “a small scratch … close to the ear, where the ear rings would be”. He then provided his account of how Jayanthy came to be injured. I have no doubt that his account was untrue, but I also have no doubt that it would not have been necessary for him to fabricate it had he come into the bedroom to find Jayanthy already injured. In other words, the assault on Jayanthy was not committed prior to 12:54 p.m., and thus it was not committed by Moorthi, Shivaprakasam or a stranger.
(b) the DNA evidence
[60] In support of its allegation that the defendant was the person who assaulted Jayanthy, the Crown adduced the opinion evidence of Melanie Richard, the Manager of the Biology Section at the Centre of Forensic Sciences. Ms Richard is an expert in bodily fluid identification and DNA analysis and interpretation.
[61] Ms Richard conducted DNA testing on fingernail clippings that were taken from Jayanthy at the time of the post-mortem examination and on a fragment of the Christmas cup that was found in pieces in Sophia’s room. DNA samples suitable for comparison were generated from those objects and DNA profiles were developed. Those profiles were compared to the profile generated from a known sample of the defendant’s DNA and in each case the profiles matched. Because they matched, Ms Richard concluded that the defendant could not be excluded as the source of the DNA from those objects. To address the significance of the matches, Ms Richard performed statistical calculations to determine what are known as ‘likelihood ratios’. Standing alone, the likelihood ratios determined by Ms. Richard point overwhelmingly to an inference that the defendant was the source of the DNA on the fingernail clippings and the fragment of the broken cup. As it turns out, there is no live issue in that respect because in his testimony the defendant conceded that he was involved in a physical altercation with Jayanthy in the course of which she scratched him and smashed the Christmas cup over his head. In the circumstances, I will only briefly review Ms. Richard’s testimony.
(i) The DNA under Jayanthy’s fingernails
[62] There is no dispute that as a result of whatever occurred between the defendant and Jayanthy on December 12, he ended up with fresh injuries to his face and head, the most serious of which was a gash to the back of his head. The position of the Crown is that the gash was the result of Jayanthy breaking the Christmas cup over his head as she was attempting to fend off his attack. The defendant testified that the gash occurred when he fell going down the stairs to open the door for the paramedics. That part of the defendant’s account may or may not be true.
[63] The other injuries consisted largely of scratches around the defendant’s mouth, to the top of his head and to his right ear. In addition, Constable Vukovic testified that there was dried blood caked around his lips and that his lips were cracked and broken. When interviewed by Detectives North and Patterson on the evening of December 12, the defendant implausibly attributed the scratches around his mouth to shaving cuts. At trial, he conceded that they had been inflicted by Jayanthy, albeit in the course of assaults by her on him.
[64] Ms. Richard testified that there was a significant amount of someone else’s DNA found under the fingernails of Jayanthy’s right hand. She testified:
The DNA profile generated from the right-hand fingernail clippings I’ve assessed as a mixture of two, one of those contributors was Ms. Seevaratnam herself… The other contributor is a male, and I did determine that profile to be suitable for comparison. That profile was compared to the known sample from Mr. Suppiah and he is not excluded as the source of that male profile.
[65] Because the defendant could not be excluded as the source of the male profile, Ms Richard sought to determine the significance of that fact by calculating the likelihood ratio. She testified:
So, in this instance we’re evaluating the likelihood of the DNA results under the scenario where the mixture originates from Ms. Seevaratnam and Mr. Suppiah versus the DNA mixture originates from Ms. Seevaratnam and some unknown person. And when comparing those two scenarios, these results are much more likely under the scenario that they originate from Ms. Seevaratnam and Mr. Suppiah versus Ms. Seevaratnam and an unknown person, and much more likely by a factor of 540 trillion times.
(ii) the DNA on the Christmas cup
[66] Fragments of the Christmas cup were found near the head of Sophia’s bed, both on the floor and inside the overturned waste basket. Ms Richard testified with respect to testing conducted on one of those fragments. She said that there were very small blood stains, millimetres in size, and that chemical testing confirmed the presence of blood. The area of staining was tested for DNA and a profile was generated. It was a mixture of DNA, meaning that it originated from more than one person, at least one of whom was a male. She compared the profile derived from the male component to the profile derived from the known sample of the defendant’s DNA. Because the profiles matched, she was unable to exclude the defendant as the contributor of the male component of the DNA. Once again, she calculated the likelihood ratio to determine the significance of that result. She testified:
With respect to the DNA results from the cup, these results [i.e., the matching profiles] are more likely if he is a contributor by a factor of 150 trillion times. So, there is a lot of support for these results under that scenario, much more than there is for the scenario that he is not.
(c) the defendant’s animus toward Jayanthy
[67] Generally speaking, evidence of a defendant’s discreditable conduct that is beyond the conduct alleged in the indictment and that does no more than portray the defendant as a person of general bad character is inadmissible. In prosecutions for domestic homicide, evidence of the history of the relationship between the defendant and the deceased, even if the history reveals discreditable conduct, may do more than simply show the defendant to be of bad character. It may, for example, help the trier of fact understand the context in which the fatal events occurred, or it may demonstrate an animus toward the deceased or circumstances that might motivate him to kill her.
[68] In this case, I permitted the Crown to adduce evidence of the defendant’s long-standing abuse of alcohol and, largely within that context, evidence of his prior mistreatment of Jayanthy. The admissibility of the defendant’s addiction to alcohol and the impact that it had on his lifestyle and on his family was conceded. The admissibility of the evidence of his prior mistreatment of his wife was not. At the end of a voir dire that was blended into the Crown’s case, I ruled that the bulk of the mistreatment evidence was admissible.
[69] Almost all the evidence of the defendant’s prior conduct came from the direct observations of his daughter, Sophia. She testified that as far back as she could recall the defendant was always yelling at Jayanthy, arguing with her in an aggressive and disrespectful tone, and calling her vulgar names. She said that he would never let Jayanthy speak, that he would tell her to just shut up and listen. He would speak badly about her family and he would say that she was not a good wife. Sometimes, he would shove her and try to grab her phone, and Sophia would get between them, push the defendant away and tell him to go upstairs. Often, when the defendant was trying to get money, Jayanthy would hide from him. Sophia also testified that about once every two weeks, going back to when she was in elementary school, the defendant would tell Jayanthy that he wanted to kill her but that he was not going to do it because of the children.
[70] In the months preceding Jayanthy’s death, Sophia testified, the defendant’s abuse of alcohol became worse. As his consumption increased, so too did his anger and aggressiveness and the threats to kill Jayanthy that he continued to utter were no longer qualified by a statement that he would not do it because of the children.
[71] In 2015, Sophia turned 16 and was able to get her driver’s license, and the family purchased a small Toyota SUV. Both Sophia and Jayanthy drove the car but the defendant did not because he had lost his driver’s license as a result of multiple impaired driving convictions. Whenever he was in the car, he sat in the rear seat. Sophia testified that on multiple occasions the defendant assaulted Jayanthy from that location, both when Sophia was driving and when Jayanthy was driving. Sophia testified that the defendant would get angry with Jayanthy, verbally abuse her, and punch her in the head or shoulder from behind. If Jayanthy were driving, she would sometimes pull over and get out; if Sophia were driving, she too would sometimes pull over to let her mother out, and then come back for her after driving the defendant home. Sophia testified that in the course of one of those assaults, the defendant hit Jayanthy on the bridge of the nose causing it to bleed. This was the only occasion on which, to Sophia’s knowledge, the defendant had ever caused a physical injury to Jayanthy.
[72] In spite of the defendant’s mistreatment of her, it was clear to Sophia that Jayanthy still loved him and did not want the marriage to end. And while Jayanthy was undoubtedly unhappy with the defendant’s abuse of alcohol, she regularly accompanied him to the LCBO to purchase his daily supply.
[73] I also admitted the evidence of Jayanthy’s younger sister, Tharsika Seevaratnam, with respect to things that Jayanthy reported to her about the defendant’s abuse. However, Jayanthy never complained to Tharsika of being assaulted and Tharsika never saw any sign of injury.
[74] The defendant conceded that for years he had been, as he put it, a slave to alcohol. At times in his testimony, it seemed that he was trying to say that he was not by nature an abusive person but that his behaviour would change when he was drinking. The difficulty, of course, is that he was drinking almost every day. With respect to Sophia’s description of his mistreatment of Jayanthy, he frequently vacillated between an acceptance of the truth of Sophia’s allegations and a denial. Sometimes he claimed that Sophia had misinterpreted or misperceived his conduct.
[75] He testified that throughout the marriage, right up to Jayanthy’s death, their relationship was “very good”. He acknowledged that there were arguments, often because of Jayanthy’s unhappiness with his drinking and unemployment, but in his view such arguments are normal in any marriage. Later, however, he conceded that sometimes he treated Jayanthy poorly. He testified: “Yes, I would agree that what [Sophia] said was correct. I would have treated my wife badly because of my drinking”. He agreed that he may have called her a pundai. He also agreed he may have called her a bitch but said that it was in a joking manner. He did not accept that he yelled at her all the time but agreed that he did so more often when he was drinking. He also agreed that he might have told Jayanthy that their marriage had been bad for him. He said that Jayanthy would stand up to him, that she would not be in fear and retreat, and in fact sometimes she would throw things at him, ‘so I would leave’.
[76] With respect to Sophia’s evidence about getting between her parents to protect her mother, his evidence was inconsistent. He initially said: “What my daughter said was true, what happened is when I’m drunk or after I take some drinks I would be there and I would be talking and she would also be talking and my wife would be laughing and smiling and would call ‘oh dad is beating me, Sophia come running’.” That is, he suggested that Sophia had misperceived a situation where her parents were joking with each other. Later, however, he seemed to concede that Sophia’s perception may have been correct. He said: “There was no need for me to grab her phone, but sometimes it may have happened when I was under the influence of alcohol and I was drunk…”
[77] He denied that he ever made a serious threat to harm Jayanthy. Again, he suggested that Sophia had misperceived situations where her parents were joking with each other. He said: “Actually… I fully accept what Sophia was saying, that it was basing on what she said, but I say these things: what I feel is that when someone is drunk and says something and the others would take it differently and be scared of it. So, I am not saying that what Sophia said is not true or is not right, what she said is right”.
[78] The defendant’s response to Sophia’s evidence about his assaults on Jayanthy in the car was somewhat hard to follow. Once again, he seemed to attribute Sophia’s evidence to a misperception. He said: “My child is like me, she would only tell the truth, there is nothing wrong with that.” “At times, I would be there drunk, intoxicated, but the type of things happening between my wife and myself is just an ordinary thing. But my daughter might have got scared of it…”
[79] He described an incident in the car when Jayanthy became angry at him and poured a cup of coffee over his head, and he “tapped” her, “out of affection”. In cross-examination, he said that the hit was ‘just a tap’, with the palm of his hand, on the neck. He said that Jayanthy reacted with a big noise, but he attributed this to her tendency to talk loudly. He also suggested that Jayanthy was playing for sympathy from Sophia.
[80] His evidence was inconsistent with respect to whether Sophia ever stopped the car to let Jayanthy out. In examination-in-chief he said: “Again, I am saying that what my daughter said might have been true, but I might also have forgotten about it.” In cross-examination, however, he firmly denied that this ever happened. He also firmly denied that he ever caused an injury to Jayanthy in the car: “No. It did not happen; for sure it did not happen… I believe that was fabricated by someone…” He accepted that “my daughter thinks it true, but it was a mistake. It is something I find difficult to believe this.”
[81] The defendant agreed that he was drinking more heavily in 2017. He stated: “During that time I got access to more funds and whenever I get access to more funds I consume more.” He was asked whether the increased consumption made him angrier and more aggressive. He stated: “What my daughter said is correct; when I drink, I would be more angrier and I would talk in an angry tone. If someone else speaks in an angrier fashion, I would also retort back. I believe that even though I get angry at that particular moment I do not carry any vengeance going forward.”
[82] Counsel for the defendant suggested that the credibility of Sophia’s description of the defendant’s treatment of Jayanthy is undermined by a bias against the defendant. It is true that Sophia does not like the defendant, but the basis for her dislike is the way he mistreated Jayanthy, not something else. I do not accept that she had a bias that would lead her to shade her evidence about that mistreatment.
[83] At the time of the occurrence, Sophia was an 18-year-old first-year university student. At the time of trial, she was 21 years of age. Throughout her testimony, she struck me as an intelligent, credible and reliable witness. On the other hand, the defendant’s account of his relationship with Jayanthy was riddled with inconsistencies. As I suggested earlier, he seemed torn between his perception of himself as essentially a good person and his realization that under the influence of alcohol he became something else. I am satisfied that Sophia’s account of the defendant’s mistreatment of Jayanthy was accurate and truthful, and to the extent that his account differs from hers I reject his.
[84] The defendant’s prior mistreatment of Jayanthy is relevant to whether he was the person who assaulted her on December 12, 2017 and, if so, to his state of mind at the time of the assault. However, it is only one circumstance to be considered in relation to those issues. It ought not to be given undue weight. The defendant is on trial for what he is said to have done on December 12, 2017, not for anything he may have done prior to that date. Not everyone with an animus toward other persons will resort to serious violence against them. And it must be borne in mind that notwithstanding the defendant’s long history of mistreating Jayanthy, there is no evidence that any prior conduct approached the seriousness of the assault that caused her death.
(d) the defendant’s statements
[85] In some circumstances, a finding that a defendant lied to the police or others with respect to his connection to a crime may give rise to an inference that he did so because of an awareness of his culpable involvement in the crime. The Crown submits that those circumstances are present in this case in relation to the statements that the defendant made to the police and to his friend Mr. Shivaprakasam.
[86] The first pair of paramedics arrived at the house at 1:46 p.m., 8 minutes after Sophia had called 911. They were followed in short order by firefighters and a second pair of paramedics. Because the defendant was drunk and in the way, the paramedics requested the attendance of the police.
[87] Constable Sneep was the first officer to arrive, at 2:15 p.m. He observed the defendant sitting by himself on the sofa. He was yelling, but Sneep could not make out what he was saying. As Sneep approached, the defendant pointed upstairs and said, “Mind your business”. Sneep noted that the defendant had glossy eyes and that there was an odor of alcohol around him. He heard the defendant say: “I thought she was sleeping”, and “How’s my wife?” Sneep had not asked the defendant anything to elicit those statements. The defendant repeated them multiple times while Sneep was in the premises.
[88] Constable Kelloway arrived at 2:16 p.m., one minute after Sneep. He proceeded up to the living room, where he found the defendant speaking on the telephone. After the call ended, the defendant volunteered that he had run upstairs when he heard his daughter crying and that he had fallen and hit his head. He added that he had thought that his wife was sleeping. Over the next 30 minutes or so, unsolicited, the defendant repeated those remarks a number of times. He also asked Kelloway how Jayanthy was. Kelloway recalled that the defendant’s speech may have been slurred, and that there was an odor of alcohol coming from him.
[89] Sergeant Delio was the third officer to arrive, at 2:28 p.m. After taking a view of the third floor, he joined Kelloway and the defendant in the living room. He noticed that there was dried blood on the defendant’s hands and he asked him where it had come from. The defendant reached to the back of his head, and Delio saw that he now had wet blood on his hands. Delio asked him: “What happened?” The defendant told Delio that he had heard his daughter crying, that he went upstairs, and that as he came down the stairs he had fallen and suffered the injury to his head. Delio noted that at times the defendant was slurring his words, that at times he was incoherent, and that there was an odor of alcohol on his breath. In Delio’s opinion, however, the defendant had no difficulty communicating when he wanted to say something, and he knew what he was doing.
[90] Constable Vukovic arrived at 2:31 p.m. After entering the living room, he heard the defendant say that he had been sleeping, that his daughter woke him up, that his wife wasn’t waking up, that he had run to check on his wife, and that when he did that he fell and hit his head. According to Vukovic, the defendant volunteered this account a number of times in the living room area, and also asked about the condition of his wife. As had the other officers, Vukovic noticed the odor of alcohol coming from the defendant and he recalled that his speech was strongly slurred.
[91] Because of the blood that was oozing from the cut to the back of the defendant’s head, Sgt. Delio instructed the constables to call for another ambulance to attend at the scene. At 2:53 p.m. the ambulance arrived, and the defendant was taken to it. The defendant sat inside the ambulance and had the gash to his head bandaged by paramedic Stephanie Chung. At one point, Ms Chung asked the defendant how the gash had happened. According to her, the defendant said that he had fallen while chasing a thief.
[92] While the defendant was being treated by Ms. Chung, Sgt Delio made the decision that he was arrestable for murder, and he was placed under arrest when he emerged from the ambulance. Before being taken to the police station, he was taken to hospital to have the gash to his head stapled. He eventually arrived at 42 Division at 7:08 p.m. At 11:16 p.m. the first of two video recorded interviews with Detectives North and Patterson began. In the interval between his arrival at the station and the beginning of the interview, the defendant had been booked into the station and fed. He had also had a private consultation with duty counsel.
[93] Near the beginning of the first interview, when the topic of his wife’s medical issues was raised, the defendant stated:
And even today she asked me, I cannot breathe, can you bring the puffer? So, I take the puffer and I give it to her and she take the puffer. Then I said, ‘Okay’. ‘No I can’t regular breathe, let me sleep and please don’t bother me.’ So, I closed the door and went downstairs and I was watching tv. Then, when my daughter came ‘ah where’s mommy?’ I say ‘Ah, she’s upstairs sleeping and don’t bother her’, ‘No, I have to talk to her because I got to go somewhere with mommy’. Then, when she go wake her up, she didn’t wake up, I didn’t know that she passed away.”
“I think she went back to sleep again. She say because, ah, she didn’t want to work today, I know that”
Q. So she went back to sleep?
A. I believe, yeah
Q. And what did you do when she went back to sleep?
A. I was watching the news and things like that.
[94] Shortly after that exchange, the defendant indicated that he wished to re-consult counsel. The detectives immediately suspended the interview and made arrangements for a second consultation. At 1:02 a.m., after the defendant had spoken to counsel again, the interview re-commenced. From the outset of the second interview, the defendant made it plain that he was no longer prepared to answer questions. However, in response to a question as to how he got the scratches around his mouth, he stated: “I got a cut when I was shaving”. When Detective North suggested that the scratches were from Jayanthy’s fingernails, the defendant replied: “Nothing like that happened”.
[95] Two days after his arrest, the defendant made a telephone call to Mr. Shivaprakasam from the jail. He told Mr. Shivaprakasam that Jayanthy had passed away. With respect to what had happened, Mr. Shivaprakasam testified that the defendant told him that “Jayanthy was coming down the stairs, she was about to fall, and that he caught her, that she held onto his shirt and the buttons broke, and that there was some blood, and that the police arrested him, that they had suspicion and that is why they arrested him.” Mr. Shivaprakasam testified that the defendant said that “she had puffs for the breathing problem, so he made her lie down, he went to the room, because the [puffer] were in the room, so he was bringing the puffs from the room, she said she was able (sic; unable?) to do anything, she was not good, she was kind of disabled and not able to do anything”. According to Mr. Shivaprakasam, “[the defendant] said that he made her lie down, then went to the room upstairs to get the puffers and when he came back, he found her in a critical state.”
[96] At the beginning of these reasons, I set out the testimony that the defendant gave in relation to the altercation between him and Jayanthy, how he came to discover that she was dead, and his interaction with Sophia when she arrived home. The statements that he made to the police and to Mr. Shivaprakasam were significantly inconsistent with that testimony. At no point in his statements to the police or in his conversation with Mr. Shivaprakasam did the defendant reveal that he had been engaged in a physical altercation with Jayanthy. Rather, what he attempted to convey to the police and to Mr. Shivaprakasam was that Jayanthy’s death had nothing to do with him. To the officers who came to the house – and in particular to Kelloway, Delio and Vukovic – he essentially claimed that the first inkling he had that something had happened to Jayanthy was when he heard Sophia crying. He dug in on that narrative in the first interview with Detectives North and Patterson. In the second interview, he specifically denied that the scratches to his face were from Jayanthy’s fingernails. He told Mr. Shivaprakasam that he made Jayanthy go to bed after she almost fell down the stairs, that he went to get her puffer, and that when he returned he found her “in a critical state”.
[97] Not only are each of those accounts inconsistent with his testimony at trial, they are in multiple ways inconsistent with one another. Only in the account to Mr. Shivaprakasam did the defendant say that Jayanthy almost fell down the stairs. He told Mr. Shivaprakasam that he found Jayanthy “in a critical state”; he told almost everyone else that it was Sophia who found Jayanthy. He told Vukovic that he was sleeping when Sophia came home; he told Detectives North and Patterson that he was watching television.
[98] Further, the defendant’s statements to the police and to Mr. Shivaprakasam were inconsistent with the credible evidence of Sophia, the physical evidence found in Sophia’s bedroom, and the medical evidence with respect to Jayanthy’s injuries.
[99] As I have said, lies told by a defendant prior to trial with respect to material matters are capable of giving rise to an inference that they were told in an effort to conceal culpable involvement in a crime. As a matter of policy, however, mere disbelief of a defendant’s out-of-court statements cannot give rise to that inference. There must be some other basis that permits a finding of fabrication to be made.
[100] The defendant did not dispute that the statements that he made to the police and to Mr. Shivaprakasam were inconsistent with his testimony at trial. Nor did he dispute that they were untrue. However, he offered a number of explanations for the inconsistencies. For example, he stated that on December 12 “I was not in a state of mind to tell the truth or anything. I was in shock, I was like a little kid, I didn’t know what was happening, so that was not the time to answer anything to anybody, so whatever came into my mind I just told.” He also said that he believed that he should not tell anyone but his lawyer what happened, “so whoever else I spoke to, I just told them different things, but I only wanted to discuss this with my lawyer which I knew that’s my right.” He said: “When I was at the police station, I was already under the influence of alcohol, I didn’t even have my medication, I didn’t even have dinner, so I had said things in a different way… I feel that I was not giving answers having a right conscious, a right mind.”
[101] The defendant also said that what he told Detectives North and Patterson about bringing Jayanthy her puffer was not a lie: “…When I was leaving my wife, she said something but I could not hear what she said, I closed the door and I left, I don’t know if she asked me for the puffers, but because I was drunk I would have blabbered that to the police.” With respect to what he said to Mr. Shivaprakasam, he said: “From the jail I didn’t tell anyone what really happened to my wife, it’s not needed from the jail, nobody needed to know so whoever asked I did not tell them really what happened”. “Because of [the] confusion and all of what was going on in my mind, I did not know what I was saying…”
[102] In my opinion, the defendant’s explanations for making untrue statements to the police and to Mr. Shivaprakasam were as contrived as the statements themselves. I accept that the defendant was under the influence of alcohol at the time of his statements to Officers Sneep, Kelloway, Vukovic and Delio, but I do not accept that it was either alcohol or shock that led him to say things that were untrue. Rather, from the moment when Constable Sneep arrived and the defendant announced that he had thought his wife was sleeping, he was consciously in the process of constructing a scenario in which he had nothing to do with the injuries suffered by her. It was a scenario that he continued to develop while in the company of Kelloway, Vukovic and Delio, and that he advanced in greater detail with Detectives North and Patterson. After watching the video recording of the interviews with the detectives, which occurred between 8 and 10 hours after the defendant’s arrest, I infer that by the time of those interviews any residual effect of the alcohol he had consumed in the morning was slight. Further, the false scenario that he put forward in his statements to the police on December 12, which he says were made under the influence of alcohol, was essentially the same scenario that he presented to Mr. Shivaprakasam two days later, when he was sober.
[103] While there must be some basis for a finding of fabrication apart from mere disbelief before an inference of a guilty mind can be drawn, the circumstances in which false statements were made may provide that basis: see R. v. Shafia, 2016 ONCA 812, at paragraph 287; R. v. Polimac, 2010 ONCA 346, at paragraph 92. In the case at bar, from the moment the first police officer arrived, and prior to the defendant becoming a suspect or having any basis for believing that the police regarded him as a suspect, the defendant began advancing an account that distanced himself from the bedroom where his wife lay dying and from what had happened in that bedroom. The circumstances in which he made the series of statements to the police on December 12 and then to Mr. Shivaprakasam two days later lead inexorably to the conclusion that he fabricated those statements to mislead the investigators and Mr. Shivaprakasam. The fact that he did so is a circumstance that can be taken into account when considering whether the Crown has proved beyond a reasonable doubt that he was the person who assaulted Jayanthy.
(e) rejection of the defendant’s account
[104] I began my review of the evidence with the defendant’s account of his interactions with Jayanthy in the hours leading up to her death. That account was meant to support his position that at no point did he assault her, that on both of the occasions when he did strike her, he did so in lawful self-defence, that the force he used was minimal, that some of the injuries she suffered may have been self-inflicted, and that the most serious injuries – the fracturing of the ribs and the laceration of the liver – may have occurred when she fell or when he accidentally dropped her. At the conclusion of my review of the defendant’s testimony, I summarized my reasons for concluding that his account was a fabrication. I will now expand on those reasons.
(i) the defendant’s account is inconsistent with the evidence of the pathologist with respect to Jayanthy’s multiple injuries
[105] The defendant testified that he and Jayanthy were involved in two altercations on December 12. The first was just after the children had left for school and involved a struggle over Jayanthy’s purse while she was still in bed. The defendant did not attribute any of Jayanthy’s injuries to this altercation. The second altercation was at about 1:00 p.m., when he went upstairs to Sophia’s bedroom to ask Jayanthy if she knew the whereabouts of his handbag and whether she had hidden some of his beer. On his account, all of Jayanthy’s injuries occurred during this second altercation.
[106] The defendant testified that when he came into Sophia’s bedroom, the only sign of injury on Jayanthy was “a small scratch … close to the ear, where the earrings would be”. During the altercation that followed, he testified, he only struck her twice, both times while fending off an assault. The first time, he said, “I pushed her away…. I tapped her on the hand, I pushed her hand, I was still seated”. The second time was when she came at him brandishing a shard of the Christmas mug. He said: “…I hit her, I believe I grabbed her and hit her at the same time. It happened so quickly. I am not sure where I hit her, it might have been on the stomach or on the back, then the cup fell down and I slowly pushed her away…” He said that he then ran from the bedroom, with Jayanthy in pursuit. Their only other physical interaction that may have caused injury to her was when he dropped her after she hit him in the mouth with her elbow. On his account, at no point did he strike Jayanthy on the face or head or neck.
[107] Dr. Williams testified that Jayanthy had two black eyes, the right side of her face was swollen, there was a patterned injury in the area of her left temple that extended into the hairline, there were three sharp-edged lacerations within that area of injury, there were contusions and lacerations over her scalp and ears, there was bleeding in the right ear and bruising on the outer edge of the ear, and there was a bruise to the left front of her neck and an abrasion on right front. The only rational inference is that all of those injuries occurred in the course of the incident in which Jayanthy’s ribs were fractured and her liver was lacerated, and that the only persons present in the house when the incident occurred were Jayanthy and the defendant.
[108] Put simply, the defendant’s account of his interaction with Jayanthy is impossible to square with the pathologist’s evidence about what happened to her.
(ii) the defendant’s account is inconsistent with the physical evidence within Sophia’s bedroom
[109] The defendant’s testimony is that when he entered Sophia’s bedroom just before the second altercation, he found Jayanthy sleeping in the small space between the foot of the bed and the closet. On his account, the entirety of the altercation, prior to her chasing him out of the bedroom, occurred there, at the foot of the bed. The physical evidence found within Sophia’s room is inconsistent with that version of events.
[110] Although Sophia testified that Jayanthy had recently been napping in her (Sophia’s) room, it was never suggested that those naps took place anywhere but on the bed. Before leaving for school that morning Sophia had made the bed and stacked the pillows on top. When she returned at 1:35 p.m., the bed was unmade. That is, it appeared to have been slept in. When Sophia left for school, her Christmas mug was intact on the small table at the head of the bed and a waste basket was upright near that small table. When she returned, the waste basket was tipped over with its contents spilling out, and the Christmas mug was in pieces inside the basket and on the floor. Manifestly, the altercation had not been confined to the foot of the bed. Further, the evidence of the unmade bed makes the defendant’s assertion that he found Jayanthy sleeping on the floor implausible. In addition, the defendant’s account of the altercation contains nothing that might explain how the sliding closet door came to be knocked several inches off its track.
(iii) the defendant’s account is inconsistent with Sophia’s evidence
[111] The defendant testified that after walking Jayanthy back to Sophia’s bedroom after she had fallen onto the bathtub, he closed the door and left Jayanthy to sleep on the floor. He said that he then came back to look again for his handbag and that he found Jayanthy motionless and unresponsive, and that he quickly came to believe that she was dead. He said that while he was still in Sophia’s bedroom, crying, he heard Sophia come into the house. He went into the hallway and yelled, “Who is this? Is it Sophia?” and that Sophia responded: “Yes daddy, what?” He testified that he then told her “it appears that your mom has fallen down and she’s not talking, call 911.”
[112] Sophia’s account of what happened when she came home was very different. She said that she entered into a completely silent house. As she went up the steps to the living room she called out “Amma”, a Tamil word for ‘mother’. She did this a number of times, but there was no response from anyone. She said that when she went to the kitchen, she heard creaking sounds from above and so she went upstairs to the top floor, continuing to call out for her mother, and continuing to hear only silence. She said that when she got to the top of the stairs, “I seen my dad in the master bedroom… He was sitting down [on the floor] with his legs crossed and his fingers interlocked on his lap”. He was looking toward the closet, staring at it as if he had something on his mind. From long experience with him, she recognized that he was drunk She stopped and asked him “Where’s mom”, and he pointed and said: “She’s sleeping in your room”. When she entered her room, she found her mother lying on the floor in front of the closet, and “I started panicking, and I was calling out to her, on my knees, and I was trying to wake her up by shaking her head and rubbing her shoulders, and I was telling her to wake up but she didn’t wake up, and then I called the ambulance”.
[113] As I stated earlier, Sophia was a credible and reliable witness. The defendant was not. I am satisfied that he did not call out to Sophia when she came into the house, he was not in the hallway between the bedrooms, he did not tell Sophia that Jayanthy had fallen, and he certainly did not tell her to call 911.
(iv) the defendant’s account is inconsistent with the statements he made to the first police officers on scene, to the detectives later that evening, and to Mr. Shivaprakasam two days later
[114] The fact that the account that the defendant gave in his testimony is significantly inconsistent with the accounts that he provided to the police on December 12 and to his friend Mr. Shivaprakasam two days later is relevant to an assessment of the credibility of his testimony at trial. That remains so notwithstanding that it is common ground that the prior statements were untrue. The fact that the defendant told a different story at trial than the lies that he told in the past is not something that enhances the credibility of his trial testimony.
(v) the defendant’s testimony is inconsistent with other reliable evidence in the case
[115] An important part of the case against the defendant is the evidence of the fresh scratches to his face and head that were observed on the afternoon of December 12, and the evidence that a significant amount of DNA linked to him was found under Jayanthy’s fingernails. The defendant purported to account for that evidence by claiming that Jayanthy had scratched him in the course of two separate altercations that day, the first in the morning and the second in the afternoon.
[116] He testified that the morning altercation occurred when he went to the master bedroom and picked up Jayanthy’s purse, which he said was on the bed beside her head. He testified that Jayanthy woke up, that she caught him rifling through her purse, and that in the course of a struggle over the purse she scratched him on the hand and on the head. A text exchange between Jayanthy and Sophia that morning suggests that this altercation never happened, because Jayanthy’s purse was not on the bed beside her head. She sent a text message to Sophia at 8:59 a.m. asking Sophia “where is my purse?” and at 9:33 a.m. Sophia texted back that it was in a drawer under some clothes.
(vi) the defendant’s account paints a highly improbable picture of the conduct of Jayanthy
[117] The picture that the defendant’s account paints of Jayanthy’s conduct on December 12 is not credible. On his account, Jayanthy was whipsawing between tender affection one moment and angry physical aggression the next. He said that she began the day scratching his face as she complained that he was drinking, but that she then volunteered to take him to the LCBO. He said that upon their return from the LCBO, she sat with him in a loving and affectionate manner as he drank a bottle of vodka, and that she paid for him to go to visit his drinking companions, but that she then exploded into anger and assaulted him at 1:00 p.m. when he asked if there was any more beer. She not only assaulted him, he said, but chased him out of Sophia’s bedroom, through the hallway, into the master bedroom, and then into the bathroom. He was 9 inches taller and more than 200 lbs. heavier than his sickly wife, yet he claimed to have been afraid of her. Then, he said, when she got hurt, she asked him for help and when he tried to help, she elbowed him in the mouth. The improbabilities within that account leave no room for any doubt about the credibility of the defendant’s version of events.
[118] Unsolicited by his own counsel or by the Crown, the defendant volunteered his theory of what had happened on December 12, 2017. In essence, it was that Jayanthy was very sick, she knew that she was about to die, and so to get back at him for his refusal to stop drinking she set up a scenario within which it would appear that he had assaulted her. This was her “master plan”. It will suffice to say that this theory is completely inconsistent with the significant and serious blunt force trauma that Jayanthy suffered to her head, face, neck, chest, ribs and liver. It is manifestly without merit.
(f) summary
[119] There is no dispute that Jayanthy Seevaratnam bled to death from a laceration to her liver and that the laceration was the result of blunt force trauma to her chest and abdomen. I have no doubt that Jayanthy suffered that trauma in the course of the same incident in which she suffered the multiplicity of other injuries to her face, head and neck that were described by the pathologist.
[120] If the trauma that led to the laceration of the liver was inflicted by another person, whether intentionally or accidentally, that person caused the death of Jayanthy and in doing so committed homicide. Apart from the defendant’s testimony, there is no evidence that any of Jayanthy’s injuries may have been self-inflicted or that they may have been caused by an accidental application of force. I not only disbelieve the defendant’s testimony suggesting those possibilities, it does not leave me with any doubt with respect to them. I am satisfied beyond a reasonable doubt that someone inflicted all of Jayanthy’s injuries, that in the course of doing so someone caused the laceration of Jayanthy’s liver, and thus that someone committed homicide.
[121] The evidence is overwhelming that the person who did that was the defendant. Completely apart from his implicit admission that he was the only person present when Jayanthy’s injuries occurred, the balance of the evidence – the scratches and other injuries to his face and head, the presence of DNA linked to him under Jayanthy’s fingernails and on the broken Christmas cup, his long-standing hostility toward Jayanthy, and his fabrication of innocent explanations for what happened to her – considered cumulatively and as a whole, establish beyond a reasonable doubt that he inflicted all of Jayanthy’s injuries.
[122] The defendant characterized the incident as an assault by Jayanthy on him. He testified that Jayanthy attacked him twice during the altercation and then chased him out of Sophia’s bedroom and down the hallway into the master bedroom. His position was that the only times he struck Jayanthy were while fending off her attack in Sophia’s bedroom, and that the force he used in that respect was minimal.
[123] If the defendant was acting in lawful self defence in causing Jayanthy’s injuries, he did not cause her death by means of an unlawful act and he is not guilty of any offence. However, I completely reject the defendant’s testimony that Jayanthy assaulted him. His testimony does not leave me with any doubt in that respect.
[124] I am satisfied beyond a reasonable doubt that Jayanthy was the victim of a beating and that the defendant is the person who inflicted that beating. In doing so, he caused Jayanthy’s death by means of an unlawful and dangerous act, and thus the homicide he committed was a culpable homicide. The remaining question is what offence the culpable homicide was.
V. Did the Defendant Commit Murder?
[125] Culpable homicide is either murder, manslaughter or infanticide. Culpable homicide is murder where the person who causes the death of a human being either means to cause death or means to cause bodily harm that he knows is likely to cause death and he is reckless whether death ensues or not. To put it another way, to prove that the defendant committed murder the Crown must prove beyond a reasonable doubt that when he assaulted Jayanthy, he either intended to kill her or he intended to cause her bodily harm that he knew was so dangerous and serious that it was likely to kill her and he proceeded despite his knowledge of that likelihood.
[126] The theory of the Crown is that when the defendant returned home at 12:54 p.m., he discovered that Jayanthy had not prepared anything for him to eat and he became angry. The Crown suggests that he went up to Sophia’s room, where Jayanthy was sleeping, and demanded food, money and beer. When Jayanthy was unable to provide any of those things, he began to choke her. In an effort to force him to release his grip on her neck, she grabbed the Christmas cup from the table beside the bed and hit him with it, causing the gash to the back of his head. The Crown theorizes that, in response, the defendant hurled Jayanthy across the room into the closet door, knocking it off its track, and then proceeded to beat her as she lay in the space at the foot of the bed.
[127] The Crown’s theory comprehensively accounts for the multitude of injuries suffered by Jayanthy, but for the most part it does so on the basis of speculation. Although the circumstantial evidence overwhelmingly establishes that the defendant inflicted a beating on Jayanthy, it does not reasonably support findings with respect to what triggered the assault or precisely what the defendant did in the course of it. In particular, for the reasons I expressed earlier, it does not support a finding that he attempted to choke Jayanthy.
[128] The Crown is correct, however in pointing to the severity of the beating as a basis upon which an inference of the intent for murder might be drawn. As Justice Moldaver observed in R. v. Rodgerson, 2015 SCC 38, at para. 19: “The more severe the injuries caused by [the defendant], and the more force required to inflict them, the stronger the inference that he intended to kill…or cause…serious injury”. The most serious injuries, the ones that required the greatest amount of force, were the fractures to Jayanthy’s ribs and the laceration to her liver. Dr. Williams testified that it takes a significant amount of force to fracture bone, and significant force to cause the kind of laceration to the liver that occurred in this case. Dr. Williams could not exclude the possibility that the injuries to the ribs and liver were caused by a single impact, but whether those particular injuries were caused by one or more than one impact, there can be no doubt that Jayanthy was subjected to multiple blows in the course of the beating. The extensive injuries to her head, face and neck cannot reasonably be explained in any other way. It is also clear that, however the beating unfolded, it moved from the head of the bed, across the room, and ended against the closet door.
[129] The injuries to Jayanthy’s face, head and neck illustrate the viciousness of the beating. Without in any way diminishing that assessment, it is fair to observe that it is more the number of those injuries than the brutality associated with any one of them that provides support for the Crown’s allegation in relation to the defendant’s state of mind. While drawing distinctions of this kind is odious, I observe, for example, that the trauma to Jayanthy’s face, head and neck did not result in fractures.
[130] As noted earlier, in a domestic homicide case, prior abusive behaviour by the defendant toward the deceased may demonstrate the existence of an animus that might have motivated the defendant to kill the deceased. In that respect, the Crown points to the history of the relationship between the defendant and Jayanthy and in particular to the evidence of the defendant’s many threats to kill her. Sophia recalled that about once every two weeks, going back to when she was in elementary school, the defendant would tell Jayanthy that he wanted to kill her but that he was not going to do it because of the children. In the months preceding Jayanthy’s death, Sophia testified, the defendant’s abuse of alcohol became worse, and as his consumption increased so too did his anger and aggressiveness, and the threats to kill Jayanthy that he continued to utter were no longer qualified by a statement that he would not do it because of the children.
[131] The prior threats and the history of mistreatment are relevant but not dispositive on the issue of intent. In R. v. MacKinlay (1986), 1986 CanLII 111 (ON CA), 28 C.C.C. (3d) 306 (Ont. C.A.), Justice Martin observed: “It, of course, would be for the jury to decide whether that statement was merely the transient outburst of a man who had consumed a large quantity of liquor or whether it indicated a resolve to kill the deceased. Threats sometimes, of course, proceed from temporary feelings of irritation rather than deep-rooted hostility, depending on the circumstances in which they are made”. Threats that a person means the recipient to take seriously are not necessarily threats that a person means to carry out. Threats that are not meant to be carried out can nonetheless be very effective weapons of domination.
[132] In relation to whether the defendant’s prior threats represented a resolve to kill Jayanthy, it is relevant that notwithstanding a long history of abusiveness, he had never before engaged in anything approaching the kind of violence that occurred on December 12, 2017. Jayanthy had talked to her sister Tharsika about the state of the marriage, and about the defendant’s mistreatment of her, but she had never complained of being assaulted. Tharsika got together with Jayanthy regularly and never saw any sign of injury. The only injury that Sophia ever attributed to the defendant was the small cut to the bridge of Jayanthy’s nose that resulted from an assault inside the car.
[133] The Crown submits that some of the defendant’s conduct after the beating is of assistance in relation to his mental state at the time of the beating. The Crown concedes that the lies that the defendant told to Sophia, the police and Mr. Shivaprakasam are not capable of supporting an inference of an awareness that he had killed Jayanthy with the intent required to make the killing murder: see R. v. Rodgerson, 2014 ONCA 366, at para. 54; affirmed on other grounds, 2015 SCC 38. The Crown argues, however, that the lies are relevant to the issue of intent in a different way, namely as evidence negativing a suggestion that due to his intoxication the defendant lacked sufficient awareness to be able to form the intent for murder: see R. v. Stiers, 2010 ONCA 382, at para. 56; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at pp. 631-32. I agree that the defendant’s lies are relevant for that purpose.
[134] An aspect of the defendant’s after the fact conduct that the Crown does rely on in relation to the issue of intent is his failure to call 911 for emergency assistance for Jayanthy. One inference that might be drawn from that failure is that he did not call because he had done to Jayanthy exactly what he had intended to do, namely cause her death. I accept that the failure to call 911 is a relevant piece of evidence. It must be considered, of course in the context of the evidence that the fact that Jayanthy had a lacerated spleen and that she was bleeding internally, which is what killed her, would not have been apparent from her outward appearance. And although the multitude of visible injuries to Jayanthy’s face and head were serious, none of them bespoke an imminent threat to life.
[135] To be clear, the Crown relies on the cumulative impact of the entire body of circumstantial evidence in support of its position that the defendant had the intent required to make him guilty of murder. For the purposes of discussion, I have of necessity addressed the relevant circumstances individually. It is not uncommon in a circumstantial case for individual circumstances to be consistent with inferences other than the guilt of the defendant. I appreciate, however, that at the end of the day the proper approach is to consider the circumstances cumulatively and as a whole and in the context of all the evidence in the case.
[136] An important part of ‘all the evidence in the case’ is the evidence of the defendant’s intoxication. Intoxication can be a two-edged sword. On one hand, it might merely cause a defendant to do something that he would not have done if he were sober, but with unimpaired foresight of the predictable consequences; on the other hand, it might cause him to act without focusing on or foreseeing those consequences.
[137] Dr. Joel Mayer is an expert in the area of the toxicology of alcohol on the human body. He was asked, based on the defendant’s evidence with respect to what he drank and when he drank it, to calculate what his blood-alcohol concentration (BAC) would have been between 1:00 and 1:30 p.m. on December 12, about the time that Jayanthy suffered her fatal injuries.
[138] The defendant testified that between 7 a.m. and 1 p.m. he consumed 3 tall boy cans of extra strength Faxe beer, 2 regular strength bottles of beer, and a 200 ml bottle of vodka. I see no reason not to accept his evidence in that regard. The fact that he was an alcoholic and that he drank to the point of intoxication virtually every day is not in issue. Sophia testified that prior to 2017 he would drink a 750 ml bottle of Iceberg vodka (or two smaller ones) and a couple of cans of Faxe beer per day. She testified that in early 2017 his consumption doubled.
[139] Dr. Mayer testified that if none of the alcohol consumed by the defendant had been eliminated, his BAC at 1:00 p.m. would have been 279 mg of alcohol in 100 ml of blood. Alcohol is eliminated from the body over time. For a light to moderate drinker, the elimination rate is between 10 and 20 mg per 100 ml of blood per hour. If Mr. Suppiah were a light to moderate drinker, by 1:00 p.m. he would likely have eliminated between 60 and 120 mg. % of the alcohol he had consumed. On that basis, Dr. Mayer provided an estimated BAC at 1:00 p.m. of between 159 and 219 mg in 100 ml of blood. He testified that for the average individual, a BAC in that range would be associated with a pronounced to substantial degree of intoxication and that there would be some impact on cognition.
[140] Dr. Mayer’s opinions were not challenged, but there are significant limitations on their utility. An elimination rate of 10 to 20 mg per hour is the generally accepted rate for light to moderate drinkers. Mr. Suppiah was not a light to moderate drinker. He was an alcoholic who drank every day. Dr. Mayer testified that, over time, alcoholics may develop elimination rates as high as 30 to 35 mg per hour. If the alcoholism has progressed to the point where it has caused liver damage, however, the rate may revert back to 10 mg per hour. Further, Dr. Mayer explained, an alcoholic may build up a tolerance such that an elevated BAC will have a lesser impact on his functioning and cognition than it would with a less experienced drinker.
[141] Dr. Mayer had not tested the defendant to assess either his elimination rate or his tolerance to the effects of alcohol. However, in light of his longstanding alcoholism, it appears that his elimination rate could have been anywhere between 10 and 35 mg per hour. If it was 35 mg per hour, his projected BAC at 1:00 p.m. would have been only 69 mg of alcohol in 100 ml of blood. That is, in the absence of testing to determine his actual elimination rate, the defendant’s BAC at the time of the homicide on December 12 could have been anywhere between 69 and 219 mg of alcohol in 100 ml of blood. Thus, simply knowing how much the defendant had consumed in the hours leading up to the fatal altercation provides limited assistance with respect to the impact of that consumption on him.
[142] The more useful evidence in this respect comes from the testimony of those who observed the defendant’s appearance and behaviour on December 12. Mr. Shivaprakasam and Moorthi were regular drinking companions of the defendant. It appears that Mr. Shivaprakasam, like the defendant, was an alcoholic. He and Moorthi had been drinking with the defendant at Bill’s place in the morning and they accompanied him back 50 Empringham at 12:19 p.m., where the three of them drank more beer. They left together in a taxi at 12:50 p.m. Mr. Shivaprakasam testified that he and Moorthi did not want the defendant to come with them because at that point he was too drunk.
[143] Sophia testified that when she encountered the defendant at 1:35 p.m. sitting cross-legged on the floor of the master bedroom, she could tell right away that he was drunk. Her long experience with the defendant’s alcoholism had put her in a good position to make that assessment. She testified: “His eyes were red, he was puffy, he looked confused, and not agitated, just in a state of confusion, really confused, he was just looking at the closet door, just staring at nothing, so I was just really confused”. At the same time, however, she noted that he was not so drunk as to be unable to walk or to go up and down the stairs. When she dealt with him after discovering her mother unconscious, he looked focused and awake, and he was not unsteady on his feet. In the course of the 911 call, when Sophia was having difficulty describing the type of building they lived in, the defendant supplied the answer: “A townhouse”. Later, when the dispatcher asked for Jayanthy’s age, and Sophia said she was 45, the defendant corrected her and said she was 46.
[144] The evidence of the paramedics, firefighters and police officers who encountered the defendant in the house supports the assessment of Sophia and Mr. Shivaprakasam that the defendant was drunk. Paul Kennedy, a captain with the Toronto Fire Service said that the defendant was slurring his speech and that he had difficulty getting to his feet. John McKeown, also a firefighter, testified that the defendant was sitting on the floor at the top of the stairs and that it took 3 or 4 minutes of “coercing” him to get him to his feet to go downstairs where he would be out of the way of the paramedics. He said that the defendant’s speech was slurred, his efforts to stand seem laboured, and he seemed unsteady while going down the stairs. In Mr. McKeown’s opinion, the defendant was intoxicated. Louis Lerant, one of the paramedics, confirmed that they were having difficulty getting the defendant out of the way. He described the defendant as loud, hostile, unresponsive, not paying attention and ‘not normal’. He did not form the opinion that the defendant was under the influence of alcohol, but he explained that his attention was focused on the patient
[145] The first police officer to arrive, Constable Sneep, testified that when he came close to the defendant, he detected an odor of alcohol. He said that he had glossy eyes and slurred speech. Constable Kelloway also noted the odor of alcohol and slurred speech. Sgt. Delio, who had a brief conversation with the defendant in the living room, testified that at times the defendant was incoherent, that his speech was sometimes slurred, and that there was an odor of alcohol on his breath. In Sgt Delio’s opinion, however, when the defendant wanted to say something, he had no problem communicating. Constable Vukovic testified that the defendant’s speech was “strongly slurred” and that there was a “strong” odor of alcohol on his breath.
[146] The paramedic Stephanie Chung spent 5 to 10 minutes with the defendant in an ambulance providing first aid for the gash to the back of his head. She conducted an awareness test, which involved asking him where he was, who he was, and what the date was. He answered all three questions appropriately. She also conducted a Glasgow Coma Scale assessment. The range of scores is from 3 to 15, with three being essentially comatose. The test was to measure his ability to obey commands, to keep his eyes open and to speak in an oriented manner. She scored him as a 15, based on the fact that he was ambulatory, he followed her commands, he had no difficulty keeping awake, and he responded appropriately to her questions. In her opinion, the defendant did not seem confused. However, she had no recollection of whether he was exhibiting signs of impairment.
[147] Perhaps the most lucid explanation of the role that evidence of drunkenness can play in a criminal case remains that provided by Justice Martin, speaking for the Court of Appeal, in R. v. MacKinlay, supra. He stated, at pages 321-22:
Where intoxication is in issue, I think it would be helpful for the trial judge to draw the jury's attention to the common knowledge of the effects of the consumption of alcohol. He should first instruct the jury that intoxication causing a person to cast off restraint and act in a manner in which he would not have acted if sober affords no excuse for the commission of a crime while in that state if he had the intent required to constitute the crime. He should then instruct the jury that where a specific intent is necessary to constitute the crime, the crime is not committed if the accused lacked the specific intent essential to constitute the crime. In considering whether the Crown has proved beyond a reasonable doubt that the accused had the specific intent required to constitute the crime charged, they should take into account the accused's consumption of alcohol or drugs along with the other facts which throw light on the accused's intent…. If the accused by reason of intoxication was incapable of forming the required intent, then obviously he could not have it. If the jury entertain a reasonable doubt whether the accused by reason of intoxication had the capacity to form the necessary intent, then the necessary intent has not been proved. If they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent, they must then go on to consider whether, taking into account the consumption of liquor and the other facts, the prosecution has satisfied them beyond a reasonable doubt that the accused in fact had the required intent.
[148] As Justice Martin observed, the effects of the consumption of alcohol are matters of common knowledge. It is a notorious fact that alcohol intoxication can have an adverse impact on cognition and foresight. It is also a notorious fact, however, that it may merely remove the inhibitions and restraints that normally govern a person’s conduct, with little or no impact on a person’s foresight of the predictable consequences of his or her conduct.
[149] Based on the observations of Mr. Shivaprakasam, Sophia, the first responders and the police officers on scene, I have no doubt that at the time he assaulted Jayanthy the defendant was intoxicated. I also have no doubt, however, that he was not so intoxicated as to be incapable of forming the intent to kill or to cause bodily harm that he knew was likely to kill. His efforts to mislead the investigators, which began as soon as the first police officer arrived, are indicative of sufficient mental capacity to form the intent for murder. The real question is not whether the defendant was capable of forming the intent for murder but rather whether the Crown has proved beyond a reasonable doubt that he did in fact form that intent.
[150] That question is to be answered in light of all of the evidence, which includes the prior history of the relationship between the defendant and Jayanthy, his prior threats to kill her, the nature and severity of the injuries he inflicted, and his failure to seek assistance as Jayanthy lay dying in Sophia’s bedroom. It also includes, of course, the fact that at no point in his long history of mistreating Jayanthy had his conduct ever approached the level of violence that he unleashed on December 12, 2017.
[151] The defendant is not required to prove that he did not have the intent to kill or to cause bodily harm that he knew was likely to kill. The burden is on the Crown to prove that he did have one of those intents. The circumstances pointed to by the Crown support its position that the burden has been met. With respect to whether there is nonetheless a reasonable doubt in that respect, I bear in mind that the circumstantial evidence does not permit findings with respect to how the assault was triggered nor how it unfolded. Answers to those questions would be of assistance in a determination of the defendant’s state of mind at the material time.
[152] In light of the evidence of the defendant’s intoxication at the time of the fatal assault and the absence of evidence as how the assault unfolded, the reasonable possibility that the defendant exploded into violence without the specific intent to kill or to cause bodily harm that he knew was likely to kill cannot be excluded. That is, the existence of the state of mind required for murder is not the only rational inference that might be drawn from the evidence, considered as a whole.
VI. Verdict
[153] For the foregoing reasons, the defendant is found not guilty of murder but guilty of manslaughter.
MacDonnell, J.
Released: May 6, 2021