Reasons for Order of Committal Under Extradition Act

Court File No.: CR-24-90000057-00MO
Date: 2025-05-20
Ontario Superior Court of Justice

Between:
The Attorney General of Canada on behalf of the Republic of France, Applicant
– and –
Prasanna Nallalingam, Respondent

Appearances:
Kiran Gill, for the Attorney General of Canada
Mark Ertel and Allan J. Lobel, for the Respondent

Heard: May 16, 2025

Sharma J.

Introduction

[1] The Crown brings this application on behalf of the Republic of France ("France") for the extradition of Mr. Prasanna Nallalingam to stand trial in France.

[2] Mr. Nallalingam is charged with the murder of Abiraman Balakrishnan and the attempted murder of Prashant Kulasekaram in La Courneuve, France on September 21, 2022.

[3] On August 8, 2024, the Minister of Justice authorized the Attorney General of Canada to seek an Order for Committal from this Court based on the Canadian offences that correspond to the alleged conduct in France, namely manslaughter, contrary to s. 236 of the Criminal Code, and assault causing bodily harm, contrary to s. 267 of the Criminal Code.

[4] On May 16, 2025, following oral argument, I granted the application and ordered the committal of Mr. Nallalingam into custody to await surrender to France. The committal was ordered for the offences set out in the Authority to Proceed.

[5] I advised reasons would issue shortly. These are my reasons.

Overview of Facts

[6] The Record of the Case ("ROC"), prepared by the Deputy Public Prosecutor at the Bobigny judicial court, sets out an overview of the investigation that unfolded in France. The following are the relevant details.

[7] On September 21, 2022, Abiraman Balakrishnan and Mr. Kulasekaram were found covered in blood in a Citröen C5 vehicle ("C5") with its windows smashed.

[8] CCTV footage showed the C5 pull onto a street, followed by a Citröen C4 ("C4") vehicle, after a Ford Transit security vehicle ("Ford") reversed in front of it to block its path. The C4 blocked it from behind. Two individuals are seen exiting from the Ford. Four individuals exited the C4. All persons were armed with swords or "katana type" bladed weapons. The windows of the C5 vehicle were smashed, and the driver and passenger were attacked and struck severely.

[9] No evidence was presented that Mr. Nallalingam was one of the individuals who exited the Ford or C4. However, the CCTV footage depicts the brake lights of the Ford activated several times during the attack. No one was seen exiting the driver's seat. Furthermore, one of the co-accused identified Mr. Nallalingam as being in the Ford.

[10] Abiraman Balakrishnan died from his injuries. Forensic investigation concluded that his death was caused by internal hemorrhage from several wounds consistent with stab wounds.

[11] Prashant Kulasekaram was found in life-threatening condition having sustained multiple wounds to his neck, internal organs and other areas of his body.

[12] From the ROC, the following additional evidence can be summarized:

• It is alleged that Mr. Nallalingam was the leader of a gang called "Aava". Several individuals provided this information to the police and/or the investigating judge. The Aava gang was known to commit acts of violence and racketeering against shopkeepers.

• The victims were members of a different gang, called the "LC Boys".

• Theiventhran Balakrishnan, an acquaintance of Abiraman Balakrishnan, the deceased, stated a turf war between the Aava and LC Boys gangs existed in La Courneuve, France. He identified Abiraman Balakrishnan as a member of the LC Boys.

• Arulprince Arulnayagam, a high-ranking member of the LC Boys, gave information that Aava gang members had beaten up a friend of his five or six months prior to the September 21, 2022 attack. Shortly afterwards, Abiraman Balakrishnan and other members of the LC Boys assaulted a member of the Aava gang. In response, Mr. Nallalingam called Mr. Arulnayagam to threaten him. Thereafter, and before the attack on September 21, 2022, Mr. Arulnayagam's home in Sri Lanka was ravaged.

  Mr. Arulnayagam sought to calm the situation with Mr. Nallalingam, but Mr. Nallalingam demanded payment of 40,000 Euros to end their dispute. Mr. Arulnayagam stated this was "the last episode before the events of September 21, 2022."

  Mr. Arulnayagam told the police that approximately 2 or 3 hours following the attack, he received a call from Mr. Nallalingam who stated, "it was for you, you escaped." The phone from which the call was made belonged to another individual, which fact was confirmed by the police. Mr. Arulnayagam believed the Aava gang was after him, and that Abiraman Balakrishnan was killed in his place.

• Thulasikan Jegabalan is charged in the criminal proceedings arising from this event in France. He was identified by the police from fingerprints located at the scene. Mr. Jegabalan gave a statement to the police on June 9, 2023, admitting his involvement in the attack. He explained:

  • He was at a playground in Romainville with a group of friends on the day of the attack. Mr. Nallalingam was also present.
  • Mr. Nallalingam told the group they had to go to La Courneuve. He gave them a lot of alcohol, long shirts, something to cover their faces and what Mr. Jegabalan thought was a knife.
  • Mr. Nallalingam ordered Mr. Jegabalan to cover his face. Mr. Jegabalan said he did not usually drink and could not recall if his face was masked.
  • Mr. Jegabalan got into a car and Mr. Nallalingam told them he would drive them to La Courneuve "so that they could smash up a vehicle." He said he was in a car with six people, and that two or three individuals were in a van, including Mr. Nallalingam and a person referred to as "A".
  • Mr. Jegabalan said he "recalled breaking the car, saying that [Mr. Nallalingam] had kept his telephone, and then returning to Romainville after falling asleep in the car because he was drunk."
  • Mr. Jegabalan, along with others, confirmed that Mr. Nallalingam was the leader of Aava and that "he gave the orders…"

• Mr. Jegabalan was later questioned by the investigating judge on November 23, 2023. He gave the following information:

  • "[Mr. Nallalingam]'s one of the guys in the AAVA group, he's in charge of everything. I'm here because of him. The episode which took place was because of him."
  • "He gave me the orders and asked me to go with the other members. I didn't know what was going to happen. Everyone was hooded."
  • All the participants were hooded and given weapons. "On the way 'by car', they had been asked to hit the person who had broken Sharmilan MATHISEELAN's arm. He stated that he had not been ordered to kill anyone, but simply to break the doors, but again said that because he was drunk, he could not remember what he had done."
  • He also said that members of Aava advised him to leave France after the attack. He provided the names of the other individuals seen exiting the Ford and C4 from the CCTV footage.

• At a further attendance before the investigating judge on June 10, 2024, Mr. Jegabalan stood by his prior statements regarding the involvement of Mr. Nallalingam. Mr. Jegabalan was asked "Do you confirm that Prasanna NALLALINGAM commanded the attack on 21 September 2022, seconded by Mark (Logikan RASAVAROTHAYM)?", to which Mr. Jagabalan replied, "I Conform [sic]".

Position of Mr. Nallalingam

[13] Through counsel, Mr. Nallalingam:

• Accepted the facts set out in the Applicant's factum accurately reflect the ROC, and does not take issue with the admissibility of the ROC;
• Conceded he is the person sought by France in this prosecution;
• Takes no issue with the Applicant's submission that the conduct of the attack constitutes manslaughter and assault causing bodily harm for the principals, but says he is not a principal;
• Argues that a prima facie case has not been made out that he is a party to either of the offences; and
• In particular, he argues there is no evidence of mens rea to commit an assault or that bodily harm that was neither trivial nor transitory was foreseeable. At its highest, there is some evidence of a common intention to damage a vehicle and that Mr. Nallalingam abetted the perpetrators and had the mens rea for an offence of damaging property. However, damaging the vehicle is not the unlawful act that caused the death of Abiraman Balakrishnan, or bodily harm to Mr. Kulasekaram.

Analysis

[14] I reject the argument that a properly instructed jury could not find the mens rea requirement has been established. Based on the circumstantial evidence, a properly instructed jury could draw a reasonable inference and conclude that Mr. Nallalingam had the requisite mens rea for manslaughter pursuant to ss. 222(5)(a) and 234 of the Criminal Code and assault causing bodily harm contrary to s. 267(1)(b) of the Criminal Code.

[15] To prove the offence of manslaughter beyond a reasonable doubt, the Crown must establish the actus reus and mens rea of the underlying unlawful act. The existence of sufficient evidence of the actus reus is not disputed. There is no dispute the weapons used in the attack were provided by Mr. Nallalingam.

[16] For the offence of unlawful act manslaughter under s. 225(a) of the Criminal Code, the Crown must prove reasonable foreseeability of a risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act: R. v. Creighton, [1993] 3 SCR 3, 83 CCC (3d) 346 at 373. It is only necessary that the Crown establish that there is foreseeable risk of harm, and not foreseeable risk of death: Creighton at 381.

[17] Based on the circumstantial evidence before me, a jury properly instructed could readily find that Mr. Nallalingam intended for the attack to cause harm, and/or that there was a reasonably foreseeable risk bodily harm would result, which is neither trivial nor transitory. I form this conclusion based on the following:

• The CCTV footage recorded two men leaving the Ford but no one exited the driver's side.
• The brake lights illuminated several times during the attack.
• Mr. Jegabalan gave information that Mr. Nallalingam was in the Ford.
• Mr. Jegabalan stated those in the C4 were given direction to "hit the person" who had broken another individual's arm enroute to the encounter.
• Mr. Jegabalan did not specifically identify Mr. Nallalingam as the individual who gave that direction, only that "they" (the occupants of the C4) were given that instruction.
• An instruction to "hit" a person when armed with a knife or sword demonstrates a reasonable foreseeability of a risk of bodily harm.
• If the intent was solely to cause damage to the vehicle, this could have been done when it was not occupied.
• If the intent was to cause damage to the vehicle while occupied, there is a reasonable foreseeable risk that bodily harm would result.
• The attackers were armed and smashing the windows of the vehicle. Broken glass and the impact of doing so with the weapons itself were foreseeable.
• A reasonable inference exists that Mr. Nallalingam drove the Ford and assisted in boxing in the C5 to allow the attack to occur.

[18] A properly instructed jury may also infer that Mr. Nallalingam gave the direction to cause bodily harm on the way to the attack based on the following:

• Mr. Jegabalan stated Mr. Nallalingam "gave the orders" for the attack, and that he provided members of his gang hoods, swords, and knives in advance of the attack.
• If Mr. Nallalingam sought to only damage the vehicle, this could have been done when the vehicle was parked and unoccupied. Instead, the vehicle was boxed in with occupants unable to escape.
• Further, the attackers were furnished with weapons of swords and knives.
• Mr. Jegabalan reported to an investigating judge that Mr. Nallalingam "commanded" the attack.
• There is evidence of motive between two rival gangs and an intention by Mr. Nallalingam to retaliate against the LC Boys based on a prior incident. Shortly after the attack, it is alleged Mr. Nallalingam contacted Mr. Arulnayagam, a high-ranking member of the LC Boys gang, and advised the attack was meant for him, but he escaped. Further, there is evidence Mr. Nallalingam previously threatened Mr. Arulnayagam.
• If accepted that he "commanded" the attack (and was present), a reasonable inference is available that Mr. Nallalingam knew or was made aware of what occurred immediately or shortly thereafter, and that it resulted in death or bodily harm.
• The call to Mr. Arulnayagam demonstrates that he was aware of the risk of bodily harm to the occupants of the vehicle or that he intended from the outset for harm to be inflicted, except it was meant for Mr. Arulnayagam.

[19] The above evidence supports the prosecution's theory that Mr. Nallalingam intended for the victims to be harmed. It is also consistent with the allegation that Mr. Nallalingam previously threatened Mr. Arulnayagam.

[20] The defence relied on evidence that Mr. Nallalingam had kept Mr. Jegabalan's phone, and therefore, it is not possible that Mr. Nallalingam called Mr. Jegabalan to give the instruction to cause bodily harm on the way to the attack. It is unclear at what point Mr. Nallalingam kept the phone. There is evidence that Mr. Nallalingam used other individual's phones based on the call made after the attack to Mr. Arulnayagam.

[21] Whether Mr. Nallalingam was the driver of the Ford or not, the attack was clearly coordinated, and there is a reasonable inference there was a means of communication between the Ford and C4. The Ford reversed to block in the C5, and the C4 was following behind the C5. The drivers of the Ford and C4 would both need to know when they were going to block in the C5 and commit the attack. Even if Mr. Nallalingam was not the driver of the Ford, he could have still provided the instruction to cause bodily harm by calling another person in the C4.

[22] The evidence of Mr. Nallalingam's unlawful actions, even in planning property damage to vehicles, could demonstrate to a jury that those actions were sufficiently dangerous and a contributing cause of the victim's death: R. v. Maybin, 2012 SCC 24, [2012] 2 SCR 30 at paras 14-15, 28. The evidence that Mr. Nallalingam planned and commanded the attack—not of a parked and unoccupied vehicle—but of a vehicle that was forced to stop, could not escape, and had occupants in it, combined with the evidence that he provided the group with swords, knives and other similar weapons and hoods, with orders to "smash a vehicle" is some evidence a jury properly instructed could rely upon to become satisfied of the guilt of Mr. Nallalingam. To be clear, he did not provide them with bats, sticks, or hammers that might be used for property offences—instead, he provided them with weapons that were inherently dangerous.

[23] The individuals involved in the attack deliberately smashed the driver's and passenger's side windows while occupants were in those seats, with the dangerous weapons provided by Mr. Nallalingam and which ultimately killed or injured the victims. The parties chose not to smash the hood, the lights, or the tires of the car. This gives rise to a reasonable inference that this was a planned attack intended to harm and/or intimidate the occupants of the vehicle knowing the risk of bodily harm. Further, there is evidence the manner of attack was directed by Mr. Nallalingam. These actions, taken together, could lead a jury to conclude he was engaged in actions sufficiently dangerous to be a contributing cause of Abiraman Balakrishnan's death and the injuries to Mr. Kulasekaram.

[24] In all, I am satisfied that a properly instructed jury could conclude Mr. Nallalingam possessed the requisite mens rea for the offences of assault causing bodily harm and unlawful act manslaughter, namely:

• an intent to cause bodily harm to the driver and passenger of the vehicle, or at least, objective foreseeability that the use of these types of weapons to "smash a vehicle" in this type of attack that he planned would probably cause harm; and
• objective foreseeability of a risk of bodily harm which is neither trivial nor transitory in the context of the predicate offence of assault causing bodily harm.

[25] I find a reasonably instructed jury could also conclude Mr. Nallalingam aided or abetted the perpetrators in committing assault causing bodily harm and unlawful act manslaughter under s. 21(1)(b) and (c) of the Criminal Code, or that he acted with the perpetrators with a common intention to do so under s. 21(2). This would be based on the evidence that he planned the attack, provided dangerous weapons and hoods to the perpetrators, "commanded" the attack to happen, and as stated above, a reasonable inference that he intended bodily harm or a finding that harm was objectively foreseeable based on the manner by which he planned the attack, or participated in it, if a jury were to conclude he was the driver of the Ford.

[26] For these reasons, I am satisfied that a properly instructed jury could find Mr. Nallalingam guilty of the offences of unlawful act manslaughter and assault causing bodily harm.

[27] Pursuant to s. 29(1) of the Extradition Act, I have ordered the committal of Mr. Nallalingam into custody at the Toronto South Detention Centre or any other prison within Canada. Pursuant to s. 38(2) of the Extradition Act, I advised Mr. Nallalingam that he will not be surrendered until after the expiry of 30 days and that he has a right to appeal the order and to apply for judicial interim release.

Sharma J.
Released: May 20, 2025