Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
D. Steinberg, for the Crown
— And —
Jason Jesupillai & Charles Jesupillai
H. Morton, for Charles Jesupillai; Jason Jesupillai representing himself
Heard: March 3, 2017
FELDMAN J.:
Introduction
1Jason Jesupillai and Charles Jesupillai are each charged with one count of assault. It is alleged that on January 18, 2016, the defendants, who are brothers, assaulted Shamini Jothieswaran, a cousin with whom Charles is in a common law relationship. There are no particulars of the alleged offences.
2Ms. Jothieswaran did not call the authorities about the alleged offences, but rather spoke to her sister, Sudarshini Ramana, who in turn called police to report that Shamini had been assaulted and was in fear of her life. When the police came to her home to investigate the allegations, Ms. Jothieswaran denied being hit by the two men.
3In her testimony, Shamini maintained that position. She was dismissive of the Crown's questions, indicating that she wanted no part of the proceedings. In her demeanour, but more significantly in her many implausible answers, I found her to be unworthy of credit.
4The only evidence supporting the allegations came from Sudarshini, who testified to hearsay utterances made to her by Shamini contemporaneous to the events in the home. Mr. Steinberg, for the Crown, submits that this evidence is admissible for its truth under the Khan principles as a necessary and reliable exception to the hearsay rule: R. v. Khan, [1990] 2 S.C.R. 531, 1990), [1995] O.J. No. 3277 (Ont. C.J., Gen.Div.), where the complainant made utterances to a friend contemporaneous to the events that were at odds with her testimony. Relying on the decision in R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257(S.C.C.), Langdon J. was of the view, at para. 29, that the prior inconsistent statement of a witness testifying at trial meets the necessity criterion.
16Similarly, in R. v. Caplette, 2007 SKPC 27, the court held that the earlier hearsay statement was necessary evidence because the same quality of evidence could not be obtained at trial. As well, the fact that a witness is available at trial does not preclude her prior statement from being necessary.
17I am satisfied, in addition, that threshold reliability has been met, in the sense that "the evidence is worth receiving for assessment by the trier of fact": R. v. Chretien, 2014 ONCA 403. There are a number of reasons. The statement at bar was made contemporaneous with the alleged offences. The officer's observations of the complainant's demeanour were consistent with the import of the utterances. And on this evidence, I draw no inference that the statement was contrived, although its worth was diminished somewhat by Sudarshini's likely convenient memory loss regarding the threat-to-kill allegation.
18Of significance, Sudarshini was available for cross-examination. Under this criterion, that is the most important factor supporting admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents: R. v. Youvarajah, 2013 SCC 41.
Does the Prejudicial Effect of Admission Outweigh the Probative Value of the Evidence?
19Mr. Morton submits correctly that notwithstanding this conclusion, I have discretion to exclude the statement because its prejudicial effect outweighs its probative value: R. v. Khelawon, 2005 SCC 57. He points out that the conversation between the sisters was in Tamil and not reported word for word, that Sudarshini's testimonial reliability was questionable and importantly, that the material assertions in the utterances were vague and lacked particularity.
20For the reasons noted earlier, however, there is sufficient evidence to meet the low test for threshold reliability. It is rather in the weighing of the evidence that counsel's submissions hold sway.
21The behaviour of the defendants on Jan. 18 was aggressive, that of the complainant cowering. It is probable that Shamini was assaulted in some manner. However, the context is unclear and there are no material particulars upon which to cross-examine, injecting an element of unfairness into the trial process. I am uncertain on this evidence what occurred in Shamini's home and am left in reasonable doubt in this regard.
22The Crown has not met its onus. The charges will be dismissed.
Released: March 30, 2017
Signed: "Justice L. Feldman"