R. v. Balasuntharam

R. v. Balasuntharam Collection Decisions of the Court of Appeal Date 1999-12-20 Docket numbers C28091, C28092, C28100, C29969 Judges Finlayson, George Duncan; Austin, Allan McNiece; O’Connor, Dennis Subject Criminal Decision Content DATE: 19991220 DOCKETS: C28091, C28092, C28100 and C29969 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) –and– VYGU NTHAVASAN BALASUNTHARAM, RATNANATHAN KANDASAMY, SATHIJESVANAN KATHIRAVELU (a.k.a RUBEN KATHIRAVELU) and RAJEEF KONESWARAN (Appellants) BEFORE: FINLAYSON, AUSTIN and O’CONNOR JJ.A. COUNSEL: David Tanovich, for the appellants Balasuntharam and Kathiravelu Peter Connelly, for the appellant Kandasamy Tim Breen, for the appellant Koneswaran Robert Kelly, for the respondent HEARD: December 3, 1999 The appellants Vasan Balasuntharam and Ruben Kathiravelu appeal from their convictions imposed by Langdon J. dated July 4, 1997. The appellant Ratnanathan Kandasamy appeals from the conviction imposed by Langdon J. dated July 4, 1997 and from the sentence imposed by Langdon J. dated August 15, 1997. The appellant Rajeef Koneswaran appeals from the conviction imposed by Langdon J. dated July 2, 1997. ENDORSEMENT [1] This is an appeal by the appellants from their convictions before Langdon J., sitting without a jury, of possession of weapons dangerous to the public peace and possession of a prohibited weapon. [2] This is a common sense case. Four young men were driving along in a small car with tinted windows shortly before midnight. It was midnight. when their vehicle was stopped by a member of the Peel Regional Police. The officer stopped the car because he thought that the tinted windows violated the Highway Traffic Act, but when he smelled alcohol on the driver’s breath and saw beer bottles in the back seat, he searched the car. An AK-47 rifle and two 17-round clips lay in a bag in the foot well of the cramped back seat. Another bag, containing a loaded sawed-off shotgun, was in the trunk. As the trial judge observed, human experience tells us that property of this nature “simply would not be the subject of unknowing possession.” [3] None of the appellants was carrying a stitch of personal property: no identification, no money, no keys, no cricket gear ? nothing. The trial judge was justified in relying on this as an extremely incriminating circumstance. [4] The car itself was “clean”. It did not belong to any of the occupants. The driver, (the appellant Koneswaran) had the keys but no driver’s licence or vehicle-related documents. He told the officer who stopped the car that he had borrowed the car from a friend whose identity was never established by this appellant. If necessary, the appellants could have abandoned the vehicle and it could not have been traced back to them. [5] The owner, one Anan, had lent the car to his friend, Arul, on the understanding that it be returned the same evening. Within three hours, the appellants were found in the car with the guns and ammunition. It can reasonably be inferred that Arul gave the car to one or more of the appellants as a means of transporting the weapons. The total absence of ownership or insurance documents permitted Arul to claim that someone had stolen the car if it was ever traced back to him. But in the end, that was not necessary because Arul disappeared and was never found. He did, however, know enough on Sundaytwo days later to tell Anan that the police had impounded his car because someone had been caught drinking and driving. [6] The principal complaint of the appellants was that the trial judge was misled by the changing positions of Crown counsel at trial into making conflicting findings in convicting the four appellants. Specifically, the alleged conflict related to whether the appellants had stolen the car or were part of a joint scheme with Arul. We find no conflict of substance in the findings of the trial judge. [7] In his ruling on the voir dire dealing with the search and seizure of the firearms in the motor vehicle, the trial judge found that the appellant driver had not called any evidence to show that he had an honest belief that the person who lent him the car had the authority of the owner to do so. The owner testified to the contrary. Accordingly, the appellants could not satisfy the onus on them to show that they had an expectation of privacy in the vehicle and that it followed from this that their s.8 Charter rights had been violated. [8] None of the appellants testified and the defence led no evidence establishing that the vehicle was stolen. In his reasons convicting the appellants, the trial judge rejected the suggestion made the by counsel for the appellants who had not testified that they had stolen the motor vehicle in question, that unbeknownst to them, the firearms were already in the car and they were not aware of that fact when the vehicle was stopped. Instead, the trial judge adopted essentially the theory of the Crown that the weapons had been placed in the car by the person who lent the appellants the vehicle or that the appellants had picked up the weapons after obtaining the vehicle but, in any event, all of the occupants knew of the presence of the firearms. Any conflict in these findings is inconsequential and does not change the fact that there was ample support for the conclusion that the appellants had knowledge that the weapons were in the vehicle. [9] Accordingly, the appeals against conviction are dismissed. The application for leave to appeal sentence by the appellant Kandasamy was not proceeded with and is dismissed. Signed: “G.D. Finlayson J.A.” “Austin J.A.” “D. O’Connor J.A.”