 |
| John Hill |
There was video of the shooting, but Suthakaran was standing behind and to the left of Stewart, making it difficult for a jury to get a complete account of what was going on. The jury found Suthakaran guilty of second-degree murder on March 18, 2020, and he was sentenced to life imprisonment without parole eligibility for twelve years on July 9, 2020 (R. v. Suthakaran 2020 ONSC 4245). He appealed.
Defence counsel denied that the appellant fired the bullet. The theory of the defence was that a member of a rival gang, Shakkil Shyamalaraj, shot Stewart, who was in a fight with one of the opposing gang members.
The Crown’s position was that Suthakaran fired the fatal shot intending to wound or kill Stewart’s attacker, but the bullet entered the body of Stewart accidentally. The Crown argued it was transferred intent, i.e., Suthakaran intended to shoot Shyamalaraj but shot his best friend instead. The main issue at trial was who fired the fatal shot.
On appeal, the defence argued that the trial judge muddied the waters by instructing the jury on the law of lawful defence of a third party and additionally instructing the jury on the law of accident. By doing so, the appellant’s position was that the trial judge undermined the primary defence position that the appellant was not the shooter.
The evidence at trial was sketchy: the video could not depict the actual shooter; forensic testing could not identify the assailant; the gun that fired the shot was never located; and witnesses failed to make an identification of the shooter.
The defence position was that the trial judge erred in instructing a jury on a defence with no air of reality (R. v. Cinous [2002] 2 S.C.R. 3) and defences other than the man charged was not the shooter had no air of reality. However, the Appeal Court held that all defences that have an air of reality must be put to the jury even if not raised by counsel or even when opposed by counsel (R, v. Gauthier 2013 SCC 32; R. v. Mathisen [2008] O.J. No. 4382, and R. v. Constantine 2015 ONCA 330).
The Appeal Court considered that both the Crown and the defence at trial opposed having the jury being instructed on the defence of a third party, with both sides stating there was no air of reality to such defences. The next day, the trial judge did not take no for an answer and tried to reason with counsel that an instruction about third-party defence and accident ought to be provided. He could always add that it was not the position of the defence. The parties did not further object.
The charge to the jury stressed that it was the defence position that Shyamalaraj was not the shooter but added that if the jury considered that he did pull the trigger, then jurors should also consider whether he did so to defend his friend or if the shooting was accidental.
On appeal, the defence position was that there was no air of reality to the defence that Stewart was shot while the appellant was attempting to defend him (R. v. Suthakaran 2024 ONCA 50). Such a defence requires no more force than necessary, and the defence was bound to fail because firing a pistol would never be a reasonable response. Putting that to the jury undermined the defence that the appellant was not the shooter.
The three-judge panel of the Court of Appeal disagreed. It held there was an air of reality to the defence, and it was necessary to put those defences to the jury despite the wishes of the defence counsel. The court has held that defences of self-defence and accident can co-exist (R. v. Budhoo 2015 ONCA 912, R. v. Mulligan (2006), 80 O.R.(3d) 537 (C.A.)).
Similarly, the court held that the charge concerning an accidental firing of the gun ought to have been given. It further stated that following the decision in R. v. Groves 2023 ONCA 211, the defence of accident is best handled as part of determining the mental element of the offence. If the accused did not intend to shoot, perhaps the discharge was accidental.
The Ontario Court of Appeal dismissed the conviction appeal and did not disturb the imposition of 12 years of parole ineligibility even though 10 jurors recommended 10 years without parole.
The judgment in this case is lengthy and well-reasoned. Nonetheless, one wonders if it is overstepping the role of experienced defence counsel to limit a selected strategy by imposing defences that could undermine, what the defence believes, is its best hope for acquittal.
One could argue that unless all defences having an air of reality are included, it opens the door to appeals where the counterargument could be raised — the trial judge should have demanded these avenues to be explored. Nonetheless, this judgment presents a setback for defence counsel who plan their strategy and then find it undermined.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.