COURT FILE NO.: CR-20-30000370-0000 DATE: 20230721

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SASIKARAN THANAPALASINGAM Defendant

Counsel: A. Pilla and C. Moore, for the Crown T. Pittman, for the Defendant

HEARD: November 9, 14, 15, 16, 17, 18 and 21, 2022; March 31, May 29 and May 30, 2023

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] Sasikaran Thanapalasingam murdered his wife on September 11, 2019. They were in the midst of divorce proceedings. His victim, Tharshika Jeganathan, was on her way home from work that evening. Mr. Thanapalasingam accosted her on a residential street at 6:15 p.m. and chased her while wielding a machete. He slashed her a number of times before she collapsed on a driveway. Then he hacked her to death – a total of 13 separate strikes, many of which were delivered with ferocity to her motionless body. Much of this was recorded on video by a neighbour’s security camera, including all 13 blows administered while she was motionless. Mr. Thanapalasingam then walked calmly away from the body to his car, and drove off. Sixteen minutes later he parked his car outside the police station at 41 Division and presented himself at the front desk. He was wearing the same clothes and his victim’s blood was still on his shirt, pants, shoes, and hands.

[2] At the police station, Mr. Thanapalasingam was extremely distraught. He was taken to hospital as officers were concerned about his mental health. While there, he began to show increasing effects of intoxication. A blood sample taken at 7:46 p.m. showed an alcohol level that is the equivalent of 247 mg. of alcohol in 100 ml. of blood (80 being the legal limit to drive a motor vehicle).

[3] Mr. Thanapalasingam is charged with first degree murder. He elected to be tried without a jury and the Crown consented. An issue was raised as to his fitness to stand trial early in this proceeding. I conducted a fitness hearing and was satisfied, based on the evidence of Dr. Sumeeta Chatterjee, that he was fit. At the conclusion of the Crown’s case, I granted an adjournment to permit the defence to obtain a psychiatric opinion as to the viability of a defence that Mr. Thanapalasingam was not criminally responsible for his actions due to a mental disorder, pursuant to s. 16 of the Criminal Code, R.S.C. 1985, c. C-46. That opinion was obtained and did not support the defence. Mr. Thanapalasingam did not testify and called no evidence. A considerable amount of the evidence was the subject of an Agreed Statement of Facts, much of it consisting of video footage.

[4] There is no question that Mr. Thanapalasingam murdered his wife. The only issue for me to decide was whether this was first degree murder, or whether his capacity to form the requisite intent was so impaired by alcohol that he should be convicted only of second degree murder.

[5] There is no doubt in my mind that Mr. Thanapalasingam’s acts were planned and deliberate. He is guilty of first degree murder. My reasons for that conclusion are set out below.

B. THE FACTS

Background of the Relationship

[6] Mr. Thanapalasingam married Tharshika Jeganathan in India on November 1, 2015. It was an arranged marriage. Mr. Thanapalasingam then sponsored his wife to immigrate to Canada. She arrived on February 23, 2017 and was living with Mr. Thanapalasingam and his parents in an apartment at 30 Tuxedo Court in Scarborough. She had no relatives in Canada.

[7] Vasathan Sellamanikhan was a witness at trial. He had family connections with Ms. Jeganathan’s family in Sri Lanka through his sister’s husband. At the request of the family, he went to greet Ms. Jeganathan at the Tuxedo Court apartment not long after she first arrived in Canada. He described his role as being like an older brother to her.

[8] Approximately three weeks after Ms. Jeganathan took up residence with her husband and in-laws, Mr. Sellamanikhan called the police to report concerns about Ms. Jeganathan’s welfare, based on her reports to family members in Sri Lanka that Mr. Thanapalasingam had assaulted her. On March 14, 2017, Mr. Thanapalasingam was arrested and charged with assault. He was released on bail, subject to the condition that he have no contact with Ms. Jeganathan, and went back to live with his parents.

[9] Ms. Jeganathan stayed for a few days with Mr. Sellamanikhan and his family (his wife, three daughters, and a younger brother) and then at a women’s shelter for a week or two. She then returned to live with Mr. Sellamanikhan’s family for five or six months, until she got her own place (a basement apartment on Fishery Road, not far from where she was murdered less than two years later). Mr. Sellamanikhan testified that at one point while Ms. Jeganathan was staying with them, he saw Mr. Thanapalasingam sitting in a car 10 meters away from the house staring at his house. He reported this to police. On another occasion, Mr. Sellamanikhan reported that his brother was being bothered by Mr. Thanapalasingam at the convenience store parking lot about 250 meters from his house. He went to assist his brother and Ms. Jeganathan went with him. He testified that Mr. Thanapalasingam was enraged when he saw Ms. Jeganathan, calling her a “fucking cunt” and a “bitch.” Again, he called the police.

[10] After Ms. Jeganathan had moved to her own apartment, Mr. Sellamanikhan ran into Mr. Thanapalasingam a few times in the community. Each time, Mr. Thanapalasingam accosted him angrily and accused him of separating his family. The last such occasion was in the summer of 2019 at a Tamil festival. Mr. Thanapalasingam approached him and said he wanted to have a discussion, to which Mr. Sellamanikhan responded that there was nothing to discuss and that if Mr. Thanapalasingam did not stay away from him, he would call the police. He testified that, at that point, Mr. Thanapalasingam made a threatening gesture towards him, signifying cutting his throat.

[11] A few days after Ms. Jeganathan left her husband (which was in March 2017), Mr. Thanapalasingam and his parents sought the assistance of Somangala Somakasan to attempt to mediate a reconciliation. They knew him through connections in the Sri Lankan community. Mr. Somakasan is originally from Sri Lanka, went to university in Russia, and practiced medicine there before coming to Canada. As a doctor his specialty was in gynaecology, and he had a sub-specialty in psychology/family counselling. He was waiting for his accreditation to practice medicine in Canada, but was not yet licensed here. He provided his counselling services on a volunteer basis. Mr. Somakasan met with Mr. Thanapalasingam and his parents several times, including a number of telephone conversations with Mr. Thanapalasingam. However, Ms. Jeganathan refused to meet, sending him a message through her brother in Sri Lanka that she had no interest in reconciling with Mr. Thanapalasingam.

[12] It must be remembered that Mr. Somakasan’s meetings with Mr. Thanapalasingam and his family were two years prior to the murder. Nevertheless, the things he reported Mr. Thanapalasingam saying were very disturbing. He described both Mr. Thanapalasingam and his mother as being very angry about Ms. Jeganathan. The mother complained that Ms. Jeganathan had in effect stolen from them, given the amount of money they spent on an expensive wedding and jewellery for her. She said that she was burning all of the photographs she had of Ms. Jeganathan. Mr. Thanapalasingam also expressed extreme rage. He repeatedly told Mr. Somakasan that he was going to kill Ms. Jeganathan. Mr. Somakasan described him as being continuously aggressive and “not controlling himself at all.” He said he cautioned Mr. Thanapalasingam about approaching Ms. Jeganathan, but that Mr. Thanapalasingam told him he was following her. Mr. Somakasan quoted Mr. Thanapalasingam as saying:

• “She must be belonging to me. If not, she will not be belonging to anybody.”
• “If she’s not going to be sent back, I’m going to be killing her.”

[13] Mr. Thanapalasingam was charged on three separate occasions for breaching the terms of his bail that he stay away from Ms. Jeganathan: April 16, May 5, and September 28, 2017. Each time, he was again released on bail. Ultimately, he was tried on the assault charge and was found not guilty. He pleaded guilty to one count of breaching the non-contact provision of his bail on May 5, 2017 and the other two counts were withdrawn. He was given a conditional discharge. The Crown obtained the Minister’s consent to disclose the conditional discharge in these proceedings.

[14] On December 31, 2017, Mr. Thanapalasingam initiated divorce proceedings. In addition to a divorce, he claimed approximately $30,000 owing to him from Ms. Jeganathan for dowry property, particularly the marriage necklace and wedding expenses. He alleged that Ms. Jeganathan had: only agreed to marry him because she wanted to migrate to Canada; assaulted him; and, falsely accused him of domestic violence. He also alleged that Ms. Jeganathan was now living with Mr. Sellamanikhan.

[15] Ms. Jeganathan did not respond initially. However, in the summer of 2019 she obtained leave of the court to extend the time for filing responding material. In those materials she disputed Mr. Thanapalasingam’s financial claims and detailed her allegations of his abusive and controlling behaviour towards her. Those materials were served on Mr. Thanapalasingam on August 15, 2019, just short of one month before he killed her.

The Events of September 11, 2019 Prior to the Murder

[16] On Wednesday, September 11, 2019, Ms. Jeganathan went to work, as usual at Dollarama, which was a short walk and 10-minute bus ride from her home at 42 Fishery Road.

[17] That same morning, Mr. Thanapalasingam went to an LCBO store near his home. He can be seen on video picking up a bottle of alcohol, which is clear in colour and appears to be vodka. He then hunches over behind a shelf and can be seen secreting the bottle under his sweater. It is conceded that he stole this bottle of alcohol from the LCBO. Bizarrely, he then paid for six cans of beer and left the store. After Mr. Thanapalasingam was arrested, a 375 ml (mickey style) bottle of Smirnoff vodka was found in his car. It was three-quarters gone. There were also four full cans of beer, but no empty cans and an empty 375 ml of Crown Royal rye whiskey.

[18] At 1:39 p.m., Mr. Thanapalasingam left his apartment and took the elevator to the parking garage. He was carrying a binocular case. He walked towards his car. At 1:42 p.m., he left the parking garage and returned to his apartment, no longer carrying the binocular case. A binocular case and a pair of binoculars were found in his car after the murder.

[19] Mr. Thanapalasingam last drove his car out of the parking garage at Tuxedo Court at 3:36 p.m. At 5:43 p.m. he drove south along Fishery Road, past Ms. Jeganathan’s residence at #42, and parked at 87 Fishery Road.

[20] Ms. Jeganathan finished work and got on the Ellesmere TTC bus heading for home at 5:56 p.m., arriving at the bus stop closest to her apartment at 6:06 p.m. She walked through a plaza and along a pathway that was a shortcut connecting Ellesmere and Fishery Road. She can be seen on video at times, with her cell phone in her hand. At 6:10 p.m. she called her friend, Karunsa Parameswaran, and told her she had just gotten off the bus and was heading for home. They chatted about their days as Ms. Jeganathan continued walking. Then, Ms. Parameswaran heard her friend scream, heard the phone drop, and finally heard another scream a couple of seconds later from farther away.

The Nature of the Attack

[21] Several residents of Fishery Road saw and heard Mr. Thanapalasingam chasing a screaming Ms. Jeganathan around Fishery Road while wielding a machete over his head. Parts of the chase are captured on video. Ms. Jeganathan tried cutting across lawns and running around a parked SUV, but he quickly caught up to her and slashed her with the machete. She collapsed on the ground between 66 and 68 Fishery Road. She never moved after that.

[22] Even after she was lying there motionless, Mr. Thanapalasingam slashed her body with the machete another nine times, then paused briefly, and delivered four more blows. Those blows took about 21 seconds in total. For most of these blows, Mr. Thanapalasingam raised the machete above his head and used both hands to bring the blade down on Ms. Jeganathan’s body. For one of the strikes, he was using a sawing motion.

[23] The post-mortem report and photographs detail 30 separate chop wounds to Ms. Jeganathan’s body. Some, obviously, were more serious than others, but many of them would have been fatal. There were several deep gashes at the back of her head, through to the occipital bone, and multiple other chop wounds to her head, neck, and upper extremities. Parts of the fingers on her right hand were wholly or partially severed. Both arms were nearly severed between the shoulder and elbow.

The Events of September 11, 2019 Subsequent to the Murder

[24] Immediately after the murder, Mr. Thanapalasingam walked calmly down Fishery Road towards his car, carrying the machete by his side. This was at 6:15 p.m. He then drove away. He left the sheath for the machete at the scene. The machete itself has never been found.

[25] At 6:31 p.m., Mr. Thanapalasingam parked his car across from the front doors of 42 Division, and presented himself at the front desk. The station at 42 Division is approximately six kilometers from where Mr. Thanapalasingam had been parked at 87 Fishery Road. It was an agreed fact that this would normally be about a 12-minute drive.

[26] P.C. Tyler McGarrity was behind the front desk when Mr. Thanapalasingam entered the station. He testified that Mr. Thanapalasingam was yelling and screaming and appeared very upset. P.C. McGarrity described Mr. Thanapalasingam as speaking “gibberish” and was unable to understand what he was saying, except for the word “wife.” He could not tell if other words spoken by Mr. Thanapalasingam were English or some other language. He noticed blood on the right side of his face and on his clothing. The blood on his face appeared to be blood spatter. Another officer told P.C. McGarrity that Mr. Thanapalasingam had parked his car just outside, partially blocking the exit from the officers’ parking lot. He said Mr. Thanapalasingam had either put his keys on the desk or still had them in his hand, he was not sure which. However, P.C. McGarrity was concerned that there could be a person in the car who needed help, so he left other officers in charge of Mr. Thanapalasingam, grabbed his car keys, and went outside to check the car. When he looked inside, he could see that there was nobody in it, but he noticed a vodka bottle and Crown Royal bottle in the cupholders between the driver and front passenger seats. While outside dealing with the car, P.C. McGarrity received a text message from S. Sgt. Kinnear telling him that there had been a reported stabbing in 43 Division and the descriptions of the vehicle and suspect involved matched perfectly with the man who had just entered 42 Division. P.C. McGarrity did not disturb the car in any way, but went back into the station where D.C. James Pollard was dealing with Mr. Thanapalasingam. He went behind the front desk to get his handcuffs, intending to arrest Mr. Thanapalasingam.

[27] From behind the desk, P.C. McGarrity saw Mr. Thanapalasingam raise his fist in the air as if he was about to strike D.C. Pollard. P.C. McGarrity immediately leapt over the desk and took Mr. Thanapalasingam to the floor, cuffing him to the rear. He said that Mr. Thanapalasingam was struggling and resisting. At this point, he did not think that Mr. Thanapalasingam was intoxicated.

[28] D.C. Pollard was working in an office with a door that opened onto the front lobby. He heard the disturbance being made by Mr. Thanapalasingam when he came into the lobby and went to assist. He also could not make sense of what Mr. Thanapalasingam was saying to P.C. McGarrity. He thought some parts of what he was saying were English and heard the word “wife” but could not understand the words before or after that. He believed this could be a mental health crisis and tried using de-escalation techniques. As he got closer to Mr. Thanapalasingam he could see blood on his clothing, face and hands, and when he was in close proximity to him, he could smell alcohol. He said that Mr. Thanapalasingam seemed to calm down a bit, but as he was trying to find out from him what had happened to cause him to come to the police station, Mr. Thanapalasingam’s demeanour changed again and he believed Mr. Thanapalasingam was about to attack him. It was at this point that P.C. McGarrity, fearing the same thing, jumped over the counter and the two officers then put handcuffs on Mr. Thanapalasingam. D.C. Pollard testified that in the course of 32 years of experience in emergency services, he had seen similar episodes of people with extreme volatility and mood swings. He considered that Mr. Thanapalasingam was “under the influence of alcohol” but “was more upset emotionally.” After Mr. Thanapalasingam had been cuffed, he continued to struggle and was trying to bang his head on the floor. D.C. Pollard said at this point they put Mr. Thanapalasingam in a chair and officers held him there until the ambulance arrived to transport him to hospital for an assessment.

[29] Meanwhile, after multiple 911 calls, the murder itself was under investigation in 43 Division, where it occurred. One of the officers who responded to that call in 43 Division was P.C. Ronald McGarrity (He is the father of P.C. Tyler McGarrity in 42 Division and to distinguish them, I will refer to the father as P.C. McGarrity Sr.). P.C. McGarrity Sr. was on his way to 30 Tuxedo Court in search of the suspect in the murder when he received information from dispatch that a person meeting the description had just walked into 42 Division. He and his partner diverted to 42 Division and entered the front lobby at 6:41 p.m., just as D.C. Pollard and P.C. McGarrity were struggling to arrest Mr. Thanapalasingam on the floor. He described Mr. Thanapalasingam as “combative” and “screaming and yelling,” although he could not understand what he was saying. After Mr. Thanapalasingam was cuffed to a chair, P.C. McGarrity Sr. took physical custody of him as the crime had been committed in 43 Division and Mr. Thanapalasingam would be processed there. However, P.C. McGarrity Sr. decided to transport him for assessment at hospital first. S.Sgt. Kinnear assigned P.C. McGarrity to accompany Mr. Thanapalasingam and P.C. McGarrity Sr. to the hospital.

[30] The ambulance arrived at 7:00 p.m. and left for the hospital at 7:05 p.m. Mr. Thanapalasingam was placed on a gurney in cuffs and his legs were put in soft restraints as he was flailing around. P.C. McGarrity described Mr. Thanapalasingam’s belligerent behaviour in the ambulance, trying to break free, and telling the officers to shoot him. P.C. McGarrity Sr. noted the same behaviour, including telling the two officers to kill him.

[31] Two paramedics attended at the police station in response to the call for an ambulance, one of whom (Daniel Chmelowsky) testified at trial. Mr. Chmelowsky could not understand anything Mr. Thanapalasingam was saying at the police station. He saw no signs of a penetrating trauma, but found that his blood pressure and heartrate were high. He commented on the extent to which Mr. Thanapalasingam was screaming and shouting and the need to restrain him in the ambulance. He also noted that they put a surgical mask on him because he kept trying to spit at them. He did not detect any smell of alcohol while they were in the ambulance on the way to the hospital, but noted that Mr. Thanapalasingam was vomiting after they got to the hospital.

[32] At the hospital, Mr. Thanapalasingam’s clothes were seized by police and he was put in an orange jumpsuit. Initially, he was still screaming and yelling and was put in 4-point restraints in the hospital bed. He vomited several times. P.C. McGarrity Sr. testified that it was only when they were in the hospital that he realized that Mr. Thanapalasingam was intoxicated. He said there was a strong smell of alcohol, particularly after Mr. Thanapalasingam vomited. P.C. McGarrity also noticed that after they were at the hospital Mr. Thanapalasingam had periods of lethargy and at times was dozing off. With the assistance of a Tamil-speaking officer who came to the hospital for that purpose, P.C. McGarrity advised Mr. Thanapalasingam of his rights. P.C. McGarrity also testified that the first signs of actual impairment from alcohol he saw was when they were at the hospital.

[33] D.C. Valakumaram Piraisoody was called to the hospital to assist because he speaks Tamil. He arrived at the hospital room where Mr. Thanapalasingam was being held at 7:11 p.m. He immediately noticed that Mr. Thanapalasingam was vomiting and spitting and that there was a strong smell of alcohol. He said that as his rights were being read to him from the back of the police memo book, Mr. Thanapalasingam kept drifting in and out of consciousness.

[34] At 8:52 p.m. a doctor at the hospital cleared Mr. Thanapalasingam as medically fit to leave and the officers then took him to 43 Division for booking. By that point, Mr. Thanapalasingam was incapable of walking on his own and had to be taken out of the hospital in a wheelchair. At 9:16 p.m., Mr. Thanapalasingam was paraded at 43 Division. During that process, he showed obvious signs of severe impairment, and was not able to stand on his own. Officers had to hold him up for the booking process.

C. ANALYSIS

Planning and Deliberation

[35] I have no doubt whatsoever that this murder was both planned and deliberate. Mr. Thanapalasingam had been harboring a deep resentment and hatred towards Ms. Jeganathan since the moment she left him. Although initially seeking the assistance of a mediator to come to a reconciliation, Mr. Thanapalasingam and his family became enraged after Ms. Jeganathan declined to participate. Mr. Thanapalasingam openly expressed to the mediator his hatred for Ms. Jeganathan and his intention to kill her, despite the mediator cautioning him about such words and actions. He stalked Ms. Jeganathan relentlessly, although criminally charged three separate times with breaching the terms of his bail by being in contact with her. He repeatedly harassed her friend who gave her refuge in his family home, even as close to the murder as the summer of 2019, and that episode included an ominous throat-cutting gesture. His jealousy and rage were palpable. He was convinced that Ms. Jeganathan’s marriage to him was simply a ruse to steal from him and his family and migrate to Canada under false pretenses. He continued that theme through the pleadings in his divorce proceedings. Ms. Jeganathan dared to respond to his family law litigation by denying his allegations and accusing him of abuse. Within a month of that, he killed her.

[36] This was no chance encounter with Ms. Jeganathan. He knew where she worked, and he knew how she got home. He drove to the street where she lived and parked close to where she would emerge. He watched and waited. And he planned to do so. Earlier that day, he made a trip to his car in the parking garage and placed a pair of binoculars there. His murderous intention is clear. He brought a machete. There can have been no other purpose for the machete. Ms. Jeganathan was alone and no threat to him.

[37] There is no evidence as to where and when Mr. Thanapalasingam acquired the machete. It is possible it was something he already kept in his car, or he may have placed it there specifically for the purpose of killing Ms. Jeganathan. However, he took it with him from his car when he went to intercept Ms. Jeganathan, or, alternatively, after he saw her, he returned to his car and fetched it. Either way, the nature of the weapon itself is a strong indication of the nature of his intent. If he took the machete with him as soon as he went to intercept her, there is an inescapable inference that he intended to attack her with it. Why else would he have a machete? If his interaction with Ms. Jeganathan started without the machete, but he then returned to his car to get it and started chasing after her with it, the inference is, if anything, even more compelling. In either scenario, there was plenty of time for Mr. Thanapalasingam to formulate his plan to kill Ms. Thanapalasingam and he then proceeded to carry it into effect.

[38] If there was any doubt at all about the intent involved in bringing the machete to his interaction with Ms. Jeganathan, it is erased by his immediate actions, chasing Ms. Jeganathan down the street and across lawns and driveways, wielding the machete and slashing at her with it. Then, when he finally knocked her down, he kept it up, repeatedly and deliberately hacking at her prone body. He took aim. He positioned himself. And he chopped at her body. Then he paused, repositioned himself, and chopped at her again. He did this multiple times. The wounds included two nearly severed arms, and brutal, deep chops to the back of her skull. He intended to kill her. He planned it. And then he did it. That makes this a planned and deliberate first degree murder.

Impact of Intoxication

[39] I do not agree with the defence submission that the horrific nature of the act itself is an indication that Mr. Thanapalasingam could not have been in his “right mind” at the time. The sad truth is that atrocities are often committed by sane and sober people who are so consumed by hatred that they care nothing about the natural consequences of their actions. They do not care about the consequences for the victim. Indeed, those consequences are their desired goal. They also do not care about the consequences for themselves, or at least are satisfied that achieving their heinous goal is sufficient compensation for any personal consequences. So too, with Mr. Thanapalasingam.

[40] The only real issue in this case is whether Mr. Thanapalasingam was so intoxicated by alcohol at the time of the murder that he lacked the requisite intent for first degree murder. I am satisfied beyond a reasonable doubt that Mr. Thanapalasingam was not incapacitated to any appreciable degree. If he did consume alcohol prior to the murder, it had no impact on the planning and deliberation involved in carrying out the murder, nor did it impair his capacity to form the requisite intent.

[41] The law in Canada recognizes three broad categories of intoxication as a potential defence to a criminal charge: (1) mild intoxication; (2) advanced intoxication; and (3) extreme intoxication akin to automatism. Mild intoxication has been described as “alcohol-induced relaxation of both inhibitions and socially acceptable behaviour.” This level of self-induced intoxication is never a defence to a crime. [1]

[42] The third level of intoxication (akin to automatism) was recently considered by the Supreme Court of Canada in R. v. Brown, 2022 SCC 18, in which the accused consumed both alcohol and magic mushrooms containing psilocybin, a drug that can bring about hallucinations. According to the evidence in that case, the accused, while capable of physical movement was in a psychotic state and had no willed control over his actions. While in this state, he broke into a house and attacked and seriously injured the occupant, a person he did not even know. At issue was the constitutionality of s. 33.1 of the Criminal Code which removed the defence of self-induced drunken automatism for crimes of this nature. The trial judge found s. 33.1 to be unconstitutional and acquitted the accused of break and enter and aggravated assault. The Alberta Court of Appeal reversed that decision. However, the Supreme Court of Canada reversed the Court of Appeal, struck down s. 33.1 as being unconstitutional, and restored the acquittals. Essentially, the Supreme Court held that this provision was unconstitutional because it permitted a criminal conviction for an involuntary act in the complete absence of mens rea.

[43] Intoxication to the extent of automatism is not suggested in the case now before me. The Supreme Court in Brown was dealing with a general intent offence (aggravated assault) and with a state of impairment induced not just by alcohol but a drug that induced psychotic hallucinations. The Supreme Court took care to distinguish that case from situations of self-induced alcohol intoxication in which automatism rarely occurs and would need to be proven by expert evidence. The Court held:

I take due note that the preamble to Bill C‑72 provides that, in most cases, extreme intoxication akin to automatism is brought about not through the consumption of alcohol alone, but by the consumption of other intoxicants or a mix of alcohol and another substance. For this observation, Parliament relied upon reports and testimony by three experts in support of its conclusion that alcohol alone will not induce a state of automatism. One expert, Dr. Harold Kalant, stated that there was no scientific evidence that alcohol could cause automatism, absent an underlying health condition ( Sullivan and Chan appeals, A.R., vol. VI, at pp. 93‑95; see also the evidence of Dr. Kendall and Dr. Bradford in Standing Committee on Justice and Legal Affairs, Evidence, No. 161, 1st Sess., 35th Parl., June 13, 1995, at pp. 22‑25). While s. 33.1 refers to intoxication generally, without formally distinguishing between licit or illicit substances, the preamble to Bill C‑72 states that “the Parliament of Canada . . . is aware of scientific evidence that most intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily”.

Although both Daviault and Parliament were focussed on “drunkenness”, the parliamentary record and facts of this appeal and the Sullivan and Chan appeals suggest that the defence of extreme intoxication akin to automatism will generally not be relevant in cases involving alcohol alone. The experts in this case explained, with reference to the legal definition of automatism, that psilocybin may induce delusions, psychotic episodes, confusion and disorientation (A.R., vol. III, at pp. 241 and 315). Dr. Kalant, in contrast, testified before Parliament that, normally, alcohol progressively decreases nerve cell activity in the brain until a person becomes both unconscious and incapable of physical movement ( Sullivan and Chan appeals, A.R., vol. VI, at p. 93), an effect which would not satisfy the state of impaired conscious and unwilled movements necessary for a true state automatism. Claims of extreme intoxication must, of course, be assessed with reference to the facts and expert evidence adduced at the trial. It would be inappropriate here to foreclose a finding of extreme intoxication through any intoxicant taken alone, if medical and scientific evidence adduced compel such a conclusion. [3]

[Emphasis added.]

[44] The middle level of intoxication (advanced intoxication) is the one that most often arises in a criminal trial, particularly murder, and which is argued to be applicable in this case. In Daley, the Supreme Court of Canada described this state of inebriation as “intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea.” [4]

[45] This level of self-induced intoxication is never a defence to a crime of general intent (such as assault). However, for specific intent offences (such as murder), this level of intoxication may be relevant to whether the accused foresaw that his actions would likely result in the death of the victim. In this case, the defence argues that due to Mr. Thanapalasingam’s advanced state of inebriation, he could not have the requisite intent to commit first degree murder, and should therefore be convicted of the lesser included offence of second degree murder.

[46] The Supreme Court noted in Daley that the extent of the intoxication required to advance this type of defence will vary depending on the circumstances of the offence involved, quoting to its earlier decision in Robinson as follows:

[I]n cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an “air of reality” to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone’s head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill. [5]

[Emphasis added.]

[47] In Daley, the Court went on to elaborate:

Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused’s act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type. [6]

[Emphasis added.]

[48] Similarly, the Ontario Court of Appeal held in R. v. Herlichka, 2020 ONCA 307:

This case is unlike more typical murder cases involving the defence of intoxication, where the victim is injured by a simple push to the sidewalk, resulting in a strike to his or her head, or single kick to the head. In those cases, even in the absence of intoxication, foreseeability of likely death is a trickier subject for a jury’s consideration. That was not this case. Like a bullet to the head at close range, the blistering, vicious and unrelenting nature of the attack on Mr. Mixemong had the unmistakable markings of death. Indeed, this would have been why the jury was instructed under both ss. 229 (a)(i) and (ii) of the Criminal Code. So brutal and prolonged was the attack that the specific intention to kill was an available path to the state of mind for murder. Experienced defence counsel no doubt spoke in terms of capacity because he no doubt understood that anything short of the appellant’s inability to appreciate what everyone else witnessing the attack appreciated would have little traction with the trier of fact. [7]

[49] I turn then to a consideration of these principles based on the facts of this case.

[50] It is clear that Mr. Thanapalasingam did consume a large quantity of alcohol before he got to the police station at 6:31 p.m. His blood was tested at the hospital at 7:46 p.m. and showed an alcohol content that is the equivalent of a breathalyzer reading of 247. The legal limit to operate a motor vehicle is 80. There was never a time between Mr. Thanapalasingam’s arrival at the police station and the blood test at the hospital when he could have consumed any alcohol at all. Whatever drinking he did was before he arrived at the police station, which means either before or shortly after the murder.

[51] Between 6:15 (when Mr. Thanapalasingam killed Ms. Jeganathan) and 8:52 (when he was discharged from hospital), there was a significant deterioration in Mr. Thanapalasingam’s physical capabilities. By the time of his discharge from hospital, he could not walk and had to be taken out of the hospital in a wheelchair. The booking video from 43 Division at 9:16 p.m. shows that Mr. Thanapalasingam was extremely intoxicated and unable to even stand up unassisted.

[52] However, three hours earlier, he was able to drive his car to the police station, park it in a straight manner, and walk into the station unassisted. He was obviously upset, possibly even traumatized, as a result of the enormity of what he had just done. However, none of the experienced officers or the paramedic who dealt with him at that time perceived him to be extremely intoxicated. At most, some of them detected an odour of alcohol, enough to suggest that he “had been drinking,” but not enough to consider him to be drunk. The same was true of his demeanour in the ambulance. He was combative and highly emotional, but did not seem to be drunk. It was only after he had been in the hospital for a few minutes that his physical coordination started to deteriorate. He had trouble focusing, became lethargic, vomited at least three times without being able to control it, and was eventually drifting in and out of consciousness. Eventually, he was unable to stand up or walk.

[53] This is in marked contrast to his prior physical state at the police station, and even more compelling, the degree of physical coordination he displayed at the time of the attack on Ms. Jeganathan and its immediate aftermath. Much of that attack is captured on video. Ms. Jeganathan was young, appeared to be fit, and was running for her life. She deked and dodged in an effort to escape from Mr. Thanapalasingam. He was in close pursuit of her the whole time. He never stumbled or wavered, and he eventually caught up to her. He chopped at her body 30 times. He delivered those blows steadily and forcefully. Then he walked away. He had no difficulty whatsoever walking. Sixteen minutes later, he was at the police station, still showing little if any signs of alcohol impairment.

[54] Mr. Thanapalasingam stole a bottle of vodka earlier that day. In the cupholders next to the driver’s seat, there were two alcohol bottles: a three-quarters empty vodka bottle and an empty Crown Royal bottle. The placement of those bottles strongly suggests that Mr. Thanapalasingam consumed that alcohol while in his car. That would be a total of about 1250 ml of alcohol (assuming the Crown Royal bottle had been full). It is possible he drank some or all of that alcohol before he started his attack on Ms. Jeganathan. It is also possible he drank some or all of it after killing her and before arriving at the police station. What is readily apparent from the evidence, however, is that the effects of what he drank did not begin to emerge until around 7:05 p.m. or so, after his arrival at the hospital.

[55] The relevant point in time to assess Mr. Thanapalasingam’s mental state is at the time he committed the offence. At that point in time, Mr. Thanapalasingam was showing very little impact from the consumption of alcohol, even assuming he had consumed some prior to attacking Ms. Jeganathan. He had already planned the attack and deliberated on it. This was not an impulsive action, but rather something planned and purposeful. Mr. Thanapalasingam clearly knew what he did would cause Ms. Jeganathan to die. He clearly intended that outcome. His normal ability to understand the inevitable consequences of his actions was not negated by alcohol intoxication. I am satisfied beyond a reasonable doubt that Mr. Thanapalasingam knew exactly what he was doing, that he planned to kill Ms. Jeganathan with a machete, that he deliberated on that plan, and that he then carried out that plan in a thoroughly horrific manner. He is guilty of first degree murder.

D. CONCLUSION

[56] At the conclusion of the evidence and final argument in this case, I advised the parties that I found Mr. Thanapalasingam guilty of first degree murder and that written reasons for that decision would follow.

[57] The sentence for first degree murder is mandatory: a life sentence with no eligibility for parole for a period of 25 years, which in this case would be September 11, 2044. I did not impose that sentence immediately at the request of the Crown. Ms. Jeganathan’s family in Sri Lanka may wish to be heard. Accordingly, the matter was adjourned to October 17, 2023 for that purpose.

Molloy J.

Released: July 21, 2023

Citations

[1] R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 41.

[2] R. v. Brown, 2022 SCC 18, 472 D.L.R. (4th) 459.

[3] Ibid, at paras. 61-62.

[4] Daley, at para. 41.

[5] Daley, at para. 42, citing R. v. Robinson, [1996] 1 S.C.R. 683, at para. 52.

[6] Daley, at para. 42.

[7] R. v. Herlichka, 2020 ONCA 307, 150 O.R. (3d) 734, at para. 36.