R. v. N.B. | Examples Of Favourable Verdicts

Court File No.

ONTARIO COURT OF JUSTICE
(GENERAL DIVISION)
(Toronto Region)

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

–and–

NATHAN BALILALINGAM
Applicant

_____________________________________________________

APPLICANT’S FACTUM
_____________________________________________________

Part I – Statement of the Case

The Applicant, Nathan Balilalingam, was arrested and charged on February 18, 1997, together with Mr. Chris Paralingam (a young person within the meaning of the Young Offenders Act) with the offences of Point Firearm, Weapons Dangerous, Assault with a Weapon, and Utter Death Threats. On January 9, 1998, a preliminary inquiry was held and the Applicant was committed to trial on all charges by His Honour Judge Scullion at the Ontario Court of Justice (Provincial Division), College Park, 444 Yonge Street, Toronto, Ontario.

Part II – Summary of the Facts
1. On Saturday December 21, 1996, between the hours of 7:00 p.m. and 8:00 p.m. the complainant, Bernie Nickle, and his three friends, Terry, Everett, and Shayne, all 14 years of age, were walking in the area of Bleecker Street in Toronto. As they were walking, they saw the Applicant, Nathan Balilalingam, and Chris Paralingam nearby. They were approached by the two.
Transcript, pages 7-10

2. Paralingam started talking to the complainants. He asked the complainants if they had anything to do with the fight that had taken place the day before at Fred Varley High School in which a friend of his had been beaten up.
Transcript, page 10, lines 13 and 25
Transcript, page 11, line 16
Transcript, page 27, line 20
Transcript, page 29, lines 26-28

3. During this time, the Applicant was standing next to Paralingam speaking occasionally and only to him in “Sri Lankan”.
Transcript, page 10, line 25

4. Nickle and his friends denied that they had any participation in the fight. Paralingam continued to engage the complainants. He then pulled out a gun from his pocket and, as he shot it in the air, said, “Next time, remember this.” The complainants began to run.
Transcript, page 13
Transcript, page 14, line 30
Transcript, page 17, lines 10-20

5. Up until the time Paralingam pulled out the gun, the Applicant was standing near him and from time to time spoke to him in “Sri Lankan”.
Transcript, page 17, lines 23-30
Transcript, page 29, lines 11-27

6. As Nickle ran, he looked back and saw Paralingam and the Applicant running in the opposite direction. At this time Paralingam fired more shots over his shoulder at the complainants.
Transcript, page 18, lines 5-28

7. Nickle described both parties as wearing winter-type clothing including hats, hoods, and bandannas, which both ultimately removed during the incident.
Transcript, page 19, lines 1-24
Transcript, page 20, lines 7-11

8. Paralingam did not pass the gun to the Applicant.
Transcript, page 31, lines 4-6

9. During the encounter, the Applicant did not prevent the complainants from leaving.
Transcript, page 31, lines 7-12

10. The Applicant was not heard to utter any words of encouragement to Paralingam.
Transcript, page 31, lines 13-18

11. The Applicant made no threats to Nickle.
Transcript, page 31, lines 19 and 20

12. Nickle testified that the complainants’ decision to go out that evening was a spontaneous one.
Transcript, page 25, lines 24-29

Part III – Issues and the Law
Issue #1 – Was there any evidence upon which the Justice presiding at the preliminary inquiry was entitled to commit the Applicant to trial as a party to the offences charged against him?

13. It is respectfully submitted, firstly, that there was no evidence that the Applicant actually committed the offences and, secondly, that there was no evidence that the Applicant was otherwise a party.

14. Section 21(1) of the Criminal Code states:
Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.

“Abetting” simply means to encourage: R v. Meston (1975) 28 C.C.C. (2d) 497 (Ont. C.A.) at 503.

15. The Applicant did not encourage Paralingam. It is respectfully submitted that the evidence against the Applicant amounts only to evidence of mere presence and, as such, cannot make him liable as a party under subsections 21(1)(b) or (c) of the Criminal Code.
Dunlop & Sylvester v. R. (1979) 47 C.C.C. (2d) 93 (S.C.C.) at 106:

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

At 111:

A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it: Smith and Logan, Criminal Law, 4th Ed. (1978), p. 117. If there is no evidence of encouragement by him, a man’s presence at the scene of the crime will not suffice to render him liable as aider or abettor.

At 110:

Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement.
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A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended: per Viscount Dilhorne in Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 3 All E.R. 1140 at 1144 (H.L.). One must be able to infer that the accused had prior knowledge than an offence of the type committed was planned,… [emphasis added]

16. It is respectfully submitted that there was no evidence presented from which it could be inferred that the Applicant had prior knowledge of Paralingam’s intention to commit the offences.

17. With respect to mens rea as it relates to any actions of an accused contemplated in subsections 21(1)(b) and (c), it is respectfully submitted that an accused must have intended that his words or acts would encourage the principal: . R v. Curran (1977) 38 C.C.C. (2d) 151 (Alta. C.A.) at 156.

18. Moreover, it is respectfully submitted that an accused must have had the intention of aiding and/or abetting the principal in the commission of the very crime which the latter in fact committed: R v. Nygaard and Schimmens (1987) 36 C.C.C. (3d) 199 (Alta. C.A.) at 212.

19. Finally, it is respectfully submitted that an accused’s words or acts must have actually abetted or influenced the principal offender: R v. J.G.D. [1995] O.J. No. 912 (Ont. Ct. Prov. Div.)(Q.L.).

20. It is respectfully submitted that there was (a) no evidence of any intention of the part of the Applicant to encourage the principal in the very acts he committed and (b) no evidence that anything the Applicant did actually influenced or encouraged the principal.

21. It is therefore respectfully submitted that the applicant cannot be found liable as a party under sections 21(1)(b) or (c) of the Criminal Code.

22. Subsection 21(2) of the Criminal Code states:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

23. It is respectfully submitted that a conviction pursuant to subsection 21(2) requires proof of the following essentials:
Rex v. LeBlanc (1948) 92 C.C.C. 47 (Man. C.A.) at 50:

…(1) that a common intention should be formed by the accused and another or others; (2) that the intention should be to prosecute an unlawful purpose and to assist each other therein; and (3) that the crime with which the accused is charged should be one which was or should have been known to him to be a probable consequence of carrying out the unlawful purpose.

24. It is respectfully submitted that the unlawful purpose mentioned in subsection 21(2) cannot be the same as the offence with which the Applicant is charged.
Regina v. Simpson and Ochs (1988) 38 C.C.C. (3d) (S.C.C.) 481 at 491:

I am of the opinion that the weight of the authorities supports the dissenting view of Seaton J.A., to the effect that the unlawful purpose mentioned in s. 21(2) must be different from the offence which is actually charged. In reaching this conclusion, I adopt the words of Craig J.A., supra. The “unlawful purpose” and “the offence” committed in the course of the pursuit of the unlawful purpose are different. [emphasis added]

25. It is respectfully submitted that there was no evidence presented that any unlawful purpose was carried out by either Mr. Paralingam or the Applicant other than the offences with which both parties were charged. It is therefore respectfully submitted that the Applicant cannot be liable as a party under subsection 21(2) of the Criminal Code for the offences he has been charged with.

Issue #2 – Can the committal be quashed on an application in the nature of certiorari?

26. It is respectfully submitted that a superior court may remedy only those errors that caused the provincial court judge to lose jurisdiction: R v. Patterson (1970) 2 C.C.C. (2d) 227 (S.C.C.) at 229.

27. It is further respectfully submitted that loss of jurisdiction warranting an order of certiorari to quash an accused’s committal will occur where there has been a breach of the principles of natural justice, where there has been an error on the face of the record that assumes a jurisdictional dimension or, where the accused has been committed for trial on the basis of insufficient evidence.
R v. Skogman (1984) 13 C.C.C. (3d) 161 (S.C.C.) at 170:

The courts of this country have, since the judgment in Simard, supra, generally adopted the rule that a committal of an accused at a preliminary, in the absence of evidence on an essential ingredient in a charge, is a reviewable jurisdictional error
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“No evidence” on an essential element of the charge against the accused cannot amount to “sufficient evidence” under s. 475. In my view, this is the state of the law in this country on this issue.

At 172:

Where the record established in the preliminary hearing does not include evidence relating to each essential element of the charge brought against the accused, a committal of the accused to stand trial can be brought forward by way of a writ of certiorari to a superior court and can be quashed.

28. It is respectfully submitted that the test for the reviewing court determining an application to quash a committal for trial by means of a writ of certiorari is as expressed by Estey C.J.O., as he then was, in Re: Martin, Simard and Desjardins (1977) 41 C.C.C. (2d) 308 (Ont. C.A.), aff’d (1978), 41 C.C.C. (2d) 342 (S.C.C.) at 340:
Applying these judgment, some of which are binding on this Court, we conclude that the learned Provincial Court Judge here acted within his jurisdiction, unless it can be said that he committed these respondents on the counts specified without any evidence at all, in the sense of an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial. [emphasis added]

29. It is respectfully submitted that there was no evidence presented on the essential element of the Applicant’s liability as a party to the offences charged. It is therefore respectfully submitted that there was no evidence before the judge presiding at the preliminary inquiry upon which, acting judicially, he could form an opinion pursuant to section 548 of the Criminal Code that the evidence was sufficient to order the accused to stand trial.

30. It is therefore respectfully submitted that there was a loss of jurisdiction and the committal for trial ought to be quashed.

Part IV – Order Requested
31. An order in the nature of certiorari quashing the Applicant’s committal to trial on all charges.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

____________________________________________
Tushar Pain
Barrister & Solicitor
Counsel for the Applicant