R. v. Mariampillai, 2012 ONCJ 371

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jeyaseelan Mariampillai

Before: Justice Borenstein

Heard on: February 14 and 15 and June 7, 2012

Reasons for Judgment released on: June 11, 2012

Counsel:

• G. Brienza for the Crown
• P. Schott for Jeyaseelan Mariampillai

BORENSTEIN J.:

Facts and Allegations

1Mr. Mariampillai is charged with sexual assault and sexual interference. Nine-year-old G. is the complainant. He has alleged that the accused, his school bus driver, repeatedly sexually assaulted him on the drive home on the school bus.

2The allegations are that, while being driven home on the school bus, G. would be seated in the row of seats directly behind the accused. G. testified that, on numerous occasions, Mr. Mariampillai would turn around at red lights and place his hand on G.'s leg or penis, over his clothes, and call G. his girlfriend. Mr. Mariampillai would refer to G.'s penis as a mouse. The bus would be full of students during these exchanges, including students sitting next to G. According to G., there would sometimes be an adult on the bus when this happened.

3G. testified that two students, a girl named A. and another student definitely saw these assaults.

Crown's Case

4The Crown called G. as its sole witness. G.'s videotaped statement to the police was introduced into evidence for the truth of its contents. G. was then examined and cross-examined. He testified as to the events I just described.

Defence Case

5Mr. Mariampillai testified and denied committing any assault upon G. He testified that G. was routinely late and would misbehave more than the other children. He used to tell G. and the other children that there were mice on the bus so that they would not eat food on the bus and not lift up the carpets on the floor of the bus, something they used to do. Mr. Mariampillai denied any inappropriate touching or tickling of children. Any contact he had with the children was innocuous and related to ensuring that they were safely in their seats.

6Mr. Mariampillai testified that G.'s father was upset with him because Mr. Mariampillai would not agree to drop G. off at various places in order to accommodate G.'s father. Further, two days before these allegations were made, Mr. Mariampillai had to pull on G.'s jacket and scold him to get him to sit down in the bus.

7The defence also called A., the 11-year-old student who G. testified definitely saw the sexual contact. A. testified that she never saw any such contact between Mr. Mariampillai and the driver. She did confirm that Mr. Mariampillai did speak of mice but she did not know to what he was referring. A. also testified, contrary to Mr. Mariampillai, that the accused would sometimes tickle the children.

8The defence called further witnesses, including another bus driver who testified that there was a problem between the accused and G.'s father relating to issues about bussing G.

Submissions

9The Crown submits that G. was a credible witness who was truthful with the Court unlike Mr. Mariampillai. The Crown concedes that G. is not reliable as it relates to the frequency or dates of these incidents but submits that he was credible and reliable with respect to the incident happening more than once. The Crown submits that Mr. Mariampillai was "spinning a tale" and lying to the Court. In support of this submission, the Crown points to Mr. Mariampillai's explanation about speaking of mice as a transparent attempt to distance himself from that part of the evidence. Further, while A. did not see or perceive any sexual contact, that would not be surprising given her age and the fact that Mr. Mariampillai would naturally try to conceal the sexual nature of the contact even though he was doing it on the bus at red lights. A.'s evidence that Mr. Mariampillai would tickle children undermines Mr. Mariampillai's evidence that he did not have that kind of contact with G.

10Mr. Mariampillai submits that G. fabricated these allegations and that he had a motive to fabricate; namely, that G. was upset about being embarrassed on the bus as well as the dispute between G.'s father and Mr. Mariampillai. The defence further submits that G. was an unreliable witness, as evidenced by the fact that when he spoke to the police initially, he could say when, nor how often, these incidents occurred nor other details. The defence finally submits that, even if I were satisfied that G.'s penis was touched, there is no evidence that the touching was for a sexual purpose as required for one of the two counts, namely, the sexual interference count.

11That in essence was the evidence called at this trial and the positions of counsel.

Legal Principles

12In the end, as is often the case, the two main people involved are the only ones who can say whether this did or did not happen.

13In a criminal case, the accused is presumed to be innocent. He does not have to prove his innocence.

14It is important in a case like this not to approach the case by looking at and comparing two versions of events to determine which I prefer.

15Approaching the evidence on the basis of an either/or proposition would exclude the possibility that a reasonable doubt may exist even if I do not believe the accused's evidence.

16On the other hand, it is possible to find guilt beyond a reasonable doubt based solely on the uncorroborated evidence of one witness, even where the accused testifies and denies his guilt.

17The question, as always, is not which side is telling the truth, but rather on all of the evidence whether the case was proven beyond a reasonable doubt.

18Further, given G.'s young age, his inability to recall dates and times is much less of a concern than it might otherwise be. That is not to say that an accused can be convicted based on unreliable evidence, simply because that evidence emanates from a young person. What it means is that issues that may affect the reliability of an adult's evidence may not necessarily affect the reliability of a young witness's evidence.

19In addition to the above propositions, I also take guidance from the words of Galligan J.A. in R. v. J. (F.E.) (1990), 74 C.R. (3d) 269 (Ont. C.A.), at pp. 271-72, where he wrote:

While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, it would be horrible for an innocent person to be convicted of it. For that reason, I think the courts must be vigilant to ensure that the zeal to punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction of the innocent.

Credibility Assessment

20Before turning to the accused's evidence, I will address the defence submission concerning G.'s credibility and his alleged motive to fabricate. A dispute did exist between Mr. Mariampillai and G.'s father but, having heard G. testify, I am satisfied that he was telling the truth in this trial. He was not fabricating these allegations as part of a retaliatory effort based on some motive to fabricate.

21The cross-examination of G. only enhanced his credibility. He is a bright, articulate, thoughtful child who is very believable. I did not for a moment think he was trying to deceive the Court.

22The allegations, namely, that the bus driver would turn around and fondle a student in front of the other students is odd to say the least.

23The accused did not fare as well in cross-examination. I became concerned during the accused's evidence that he was so determined to convey his innocence that he began testifying in a manner that caused me to question his credibility. I reject his evidence that he, in effect, could not reach G. from the driver's seat. I have seen the photographs of the van and, regardless whether there were knapsacks there or not, he could reach G. but was plainly trying to convince the Court that he could not. Likewise, his evidence about creating the list of children he was dropping off was another attempt to convey something to the Court that was misleading. He presented a document to the Court which he attempted to convey was a list of the order in which children were dropped off. As his evidence unfolded, it became clear that he generated the document for his lawyer only after the charges were laid. For those, as well as for some of the reasons expressed by the Crown during submissions, I no longer believe Mr. Mariampillai.

Decision

24While, as a result of the cross-examination, I no longer believe the accused's denials, I do remain in reasonable doubt about them. Mr. Mariampillai has no criminal record. The allegations are odd to say the least. The accused's denials, even if I do not believe them, do cause me to have a reasonable doubt. That doubt is reinforced by the evidence of A. While I agree with the Crown submission that it is possible G. was mistaken when he said that A. witnessed the sexual conduct, and that it is possible that A. is mistaken when she said she did not, and that the accused may be lying when he denies committing the sexual assault, all of these factors together with the accused's evidence and the presumption of innocence, combine to leave me in a state of reasonable doubt about whether Mr. Mariampillai committed these offences. Accordingly, he will be found not guilty.