R. v. Selvaraj, 2012 ONCJ 57

COURT FILE NO.: 998 11 RA25183 DATE: 2012-02-06 Citation: R. v. Selvaraj, 2012 ONCJ 57 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) Mr. M. Gillen, for the Crown ) ) ) - and - ) ) ) Vigitharan Selvaraj ) ) ) Mr. S. Proudlove, for the Defendant ) ) ) ) ) HEARD: January 25, 2012 De Filippis, J [1] On 25 May 2010, Mr. Selvaraj pled guilty, before Justice Block, to a number of offences, including fraud, forgery, unlawful useof credit card data, and of being a member of a criminal organization engaged in debit card fraud.

He was sentenced to the equivalent offour years and three months in jail (after taking into account pre-sentence custody). Just over one year later, on 23 June 2011, he wascalled as a witness for the Crown in the trial of Nirmalarasan Kanagalingam, before Justice Lack, sitting with a jury. Mr. Kanagalingamfaced some of the same charges to which Mr. Selvaraj had previously pled guilty, including that of being a member of a criminalorganization. As a result of his testimony at that trial, Mr. Selvaraj was charged with perjury.

As he was on probation at the time, hewas also charged with violating that order by failing to keep the peace and be of good behaviour. [2] Perjury is a serious offence that is punishable by imprisonment up to 14 years. In criminal proceedings the offence can result ina miscarriage of justice or the obstruction of justice.

Perjury is an inchoate crime that primarily rests in an attempt to mislead throughfalse evidence and includes a failure of memory that is dishonest and deliberately asserted to prevent the court from arriving at a decisionupon credible evidence: See R v Wolf (1975) (SCC), 17 C.C.C. (2d) 425 (S.C.C.). In a prosecution for perjury theCrown must show that (1) the evidence given by the defendant was false, (2) the defendant knew it to be so, and (3) this was done withintent to mislead the court: See R v Calder (1960) (SCC), 129 C.C.C 202 (S.C.C.).

[ 3 ] I have no doubt that Mr. Selvaraj effectively recanted a prior statement made under oath.

However, I find him not guilty of perjury because whatever he may have done wrong, it is not that alleged by the Crown. [ 4 ] The charge before me states that the defendant, between the 20 th day of May in the year 2010 and the 23 rd day of June in the year 2011 at the City of Oshawa in the Central East Region did, with intent to mislead, make before a person authorized by law to permit it to be made, namely the Honourable Madam Justice Lack of the Superior Court of Justice, a false statement under oath, namely confirmed that the details in his agreed statement of facts prepared by him were completely true and correct, knowing the statement to be false, contrary to

Section 132 of the Criminal Code of Canada [ 5 ] The defendant’s guilty plea before Justice Block proceeded with the filing of an agreed statement of facts that was also read onto the record. The transcript of the facts so relied upon takes up 24 pages but for present purposes it is not necessary to repeat the details. It will suffice to point out that it was asserted that the defendant and others, including Mr. Kanagalingam, engaged in identity theft and the creation and use of forged debit and credit cards, thereby causing substantial losses to financial institutions.

When asked if the facts were accepted, Defence counsel [not Mr. Proudlove] advised the court that “what is proposed is that in setting out the facts that Mr. Selvaraj do so under oath”. As this was being done the defendant asked a question by way of clarification and then appeared to want to say something.

He was interrupted and, after briefly speaking with his lawyer, solemnly affirmed that the previously agreed statement of facts was true. [ 6 ] In his evidence before Justice Lack the defendant acknowledged the crimes he had committed but said he could not recall or was unaware of the role played by others, including Mr. Kanagalingam, about whom he had been called to testify. He admitted that the previously agreed statement of facts truthfully and accurately described his activities but not those of others, especially Mr. Kanagalingam.

After lengthy examination about these issues, the Crown was given leave to cross-examine the defendant pursuant to section 9(2) of the Canada Evidence Act. The Crown failed in this attempt to have the defendant adopt the prior statement of facts. I was advised by counsel, and it is not in dispute, that after the section 9(2) hearing, the Crown successfully applied before Justice Lack to have the statement of facts to which Mr. Selvaraj pled guilty admitted as direct evidence at the trial of Mr.

Kanagalingam, pursuant to the principled exception to the hearsay rule. [ 7 ] An important part of the Crown’s case against Mr. Kanagalingam was the allegation that Mr. Selvaraj had met with him at a hotel room and exchanged a pin pad containing data used to steal other people’s identity. The testimony of Mr. Selvaraj at the trial before Justice Lack is contained in over 100 pages of transcript of proceedings dated June 22 and 23, 2011.

The following excerpts are typical of the contentious evidence: Crown counsel: Did you accept and agree that that statement of facts [at his guilty plea] was true at the time that it was read out in court? Selvaraj: That’s right, but I also interrupted it and said a lot of things I’m not aware of. C: Did you agree and accept that the statement of facts was true? S: Yes I did C: Would it help you …to refresh your memory about the names you said you were associated with?

S: Wee sir, I, first of all I didn’t say any names. [Transcript, pp. 6-7] C: And when that statement of facts was read out in court, in its entirety, you agreed that you trying to tell the truth….? S: I’m sorry, I don’t... C: You were telling the truth when you testified that what you said in the statement was true? S: I didn’t say anything, sir…. [Transcript, p. 70] C: You affirmed to tell the truth…you were trying to be truthful? S: I was…. C: And does that include who you spoke to on the night of November 29/30, 2008? S: No….I was talking about it, what was my involvement, sir…..

C: So you were not being truthful about who you gave the pinpad to, is that what you’re telling me? S: I didn’t lie, but I wasn’t, at that time I wasn’t talking about that….

[Transcript, p. 71] C: The agreed statement of facts that was read at your guilty plea; were you being truthful in what you said about what happened when you back (sic) to the hotel? S: What did I – can we talk about it, specifically what it was? C: Do you agree the evidence you gave, sir, about who answered the door when you went back to room 224 [at the hotel] today is different…from what was said at your plea? S: Yes [Transcript, pp. 73-74] C: And why is your evidence different today from what was said at your plea? S: Sir, I didn’t look into the information.

I didn’t have detailed knowledge of everything that was said…I just wanted to plead and get out of there, agree for what my actions were…. [Transcript, p. 78] C: Well, is there any reason you no longer think it’s true that you handed the pinpad to Mr. Kanagalingam? S: I don’t, I don’t think, I don’t, I can’t say what it is. I don’t know, maybe it is. … C: But you agreed to it all, right…every last word?

S: That’s not true, sir. [Transcript, p. 80 - 81] Defence counsel: Sir, when you pled guilty and you agreed to the fact that you went upstairs and Nirmalarasan Kanagalingam answered the door, you’ll agree, sir that that’s a bit different than what you’re telling us today? Selvaraj: Definitely, yes. D: And you’re telling us the truth today? S: Yes D: Which is different than what you said under oath back when you entered the guilty plea? S: I didn’t say anything, I agreed upon. D: It’s different, though, than what you agreed to under oath? S: Yes D: So that was a lie?

S: I didn’t lie. [Transcript, pp. 132-33] [ 8 ] The Crown submits that the defendant initially confirmed, before Justice Lack, that the agreed statement of facts filed on his guilty plea was true and later at the same trial admitted this was false by effectively repudiating that statement. Assuming this could amount to perjury, it is not what happened in this case. As the above noted transcript references show, the defendant did not testify that his agreed statement of facts was “completely true and correct”.

This would have been welcomed by the prosecution and there would have been no need for Justice Lack to rule on a section 9(2) application or direct that the jury could consider the agreed statement of facts as direct evidence. Those rulings were made because the defendant denied some of the facts and said he could not recall others, most of which pertained to Mr. Kanagalingam. [ 9 ] It could be argued that the defendant is guilty of giving contradictory evidence in the proceedings before Justices Block and Lack. However, he is not charged with that offence.

What the Crown alleges is that the defendant lied so as to mislead Justice Lack, sitting with a jury. Whatever his intentions were at that proceeding, he did not utter the falsehood that forms the actus reus of that charge. Moreover, it was not argued that the failure to keep the peace and be of good behaviour should be based on anything other than the result with respect to the perjury count. Accordingly, the defendant is also found not guilty of breaching his probation order.

[ 10 ] The charges are dismissed. ___________________________ Signed: “Justice J. De Filippis” Released: 6 February 2012