Asogian Gunalingum was charged with kidnapping, extortion and assault. Prior to trial he applied to adduce evidence of a “third party suspect” – namely Victorbalaratnam. The court dismissed the application: 2014 ONSC 6512.
The victim, Veerpal Brar was taken from her home around 8 am on November 11, 2011. She was kidnapped from her home by a man dressed in a suit pretending to be a fence contractor. Brar also recalled that a second man, who she knew to be Vajinder Singh, assisted in the kidnapping. Brar was taken to another residence where she was tied to a cot and terrorized by Singh, the “fence contractor” and a third man. She was rescued by the police two days later.
When the police arrived at the location where Brar was being held captive there was a van in the driveway. It was registered to Nicholas Victorbalaratnam (the third party suspect). When the police attended Victorbalaratnam’s home they found him and Gunalingam – both were arrested.
When the police arrested Gunalingam they seized a pair of pants that had evidence linking him to the kidnapping of Brar. Brar noted that Gunalingam (shown to her in a lineup) “looked a little bit, a little bit like the guy who knocked at my door first, rang the bell, little bit. Little bit”. With respect to Victorbalaratnam she stated she did not know who he was.
The charges against Victorbalartnam were ultimately withdrawn. Gunalingam sought to cross-examine Brar and others suggesting that Victorbalaratnam was in fact the fence contractor – in other words, that Victorbalaratnam not Gunalingam is responsible for the crime. The defence notes, however, that it will not be “adducing or advancing a third party suspect as part of the defence’s case following the Crown’s case” [para 13]. Given this approach and the fact that the “third party suspect evidence” will be elicited in the Crown’s case Gunalingm contends no application is necessary.
The court rejected this contention:
I disagree with Mr. Leport that he is not advancing a third party suspect application. While defence counsel are to be afforded reasonable latitude in cross examination, in my view, any questions that are specifically designed to suggest to the jury that Mr. Victorbalaratnam committed the crime must satisfy the test set out in the leading decisions of R. v. McMillan (1975), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160 (Ont. C.A.) and R. v. Grandinetti, 2005 SCC 5,  1 S.C.R. 27 (S.C.C.). I see no distinction between Mr. Lepore adducing evidence as part of his case or eliciting evidence as part of cross-examination.
Mr. Lepore is not relying on evidence of Mr. Victorbalaratnam’s motive or disposition to commit the crime. He argues that, since the Crown will lead evidence about Mr. Victorbalaratnam, the jury can draw reasonable inferences from the evidence. The bottom line is that he wants to suggest to the jury that the description of the kidnapper and other pieces of evidence likely point to Mr. Victorbalaratnam as the fence contractor and not the accused.
I do not consider Mr. Lepore’s submissions to be persuasive. In my view, there is no evidence that connects Mr. Victorbalaratnam to the offence. [@15, 18-19].
After reviewing the reasons why there was an insufficient evidentiary link the court held that there was therefore no air of reality to the third party suspect assertion.