WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

486.4(2) 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.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(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.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-10-23

Docket: C62689

Panel: Laskin, Feldman and Blair JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Varatharajah Thyagarajah Applicant/Appellant

Counsel

Marc Schiffer, for the appellant

Peter Fraser, for the respondent

Hearing

Heard and released orally: October 23, 2017

On appeal from: the decision of the Summary Convictions Appeal Court dated January 26, 2016 by Justice Kenneth Campbell of the Superior Court of Justice, dismissing the appeal from the conviction entered on May 6, 2014 by Justice Mavin Wong of the Ontario Court of Justice.

Reasons for Decision

Fresh Evidence – Expert Opinion on Multiple System Atrophy

[1] The appellant was convicted of sexual assault. His appeal to the summary conviction appeal court was dismissed. He now seeks leave to appeal to this court. He raises four issues on which he seeks leave.

[2] First, he seeks leave to introduce as fresh evidence the expert opinion of a doctor on multiple system atrophy, a disease that the complainant suffered from.

[3] We deny leave to admit this fresh evidence. We accept that the doctor is an acknowledged expert on neurodegenerative disorders, including multiple system atrophy. But even if we do not give effect to the lack of due diligence, the proffered evidence does not satisfy the Palmer test.

[4] The doctor did not review any of the complainant's medical records. He did not have any information about whether the complainant was on medication. And he did not review the transcript of the trial or the complainant's videotaped statement. The doctor's two page general opinion letter could not reasonably have affected the issue for which it was tendered: whether the complainant consented to the sexual activity. Leave to introduce the fresh evidence is refused.

Undisclosed Criminal Record

[5] Second, the appellant seeks leave to introduce the complainant's criminal record, which was not disclosed to the defence before trial. He argues that there is a reasonable possibility the criminal record could have affected the result at trial or the fairness of the trial. We disagree.

[6] Undoubtedly, the complainant's criminal record should have been disclosed to the defence before trial. The Crown's failure to do so was inadvertent. But the complainant's record consisted of a single entry for uttering a forged document for which she was convicted over 20 years before the trial when she was a young woman, and for which she received a suspended sentence.

[7] We see no reasonable possibility that this dated record could have affected the trial judge's assessment of the complainant's credibility or the result at trial. Nor in our view could it have affected the fairness of the trial. The complainant died before she could testify at trial. Thus, the record could not be used to impeach her evidence on cross-examination. At most, it would have been another argument in support of the appellant's contention that the complainant's evidence should not be believed. In our view the unavailability of the record at trial would have affected trial fairness or the defence's strategy minimally or not at all.

Admissibility of Videotaped Hearsay Statement

[8] Third, the appellant submits that the summary conviction appeal court judge erred in law in upholding the trial judge's finding that the complainant's videotaped statement was admissible under the principles in Khelawon.

[9] The appellant's submission on this issue has two branches: first, the summary conviction appeal court judge erred by failing to hold that the material inconsistency in the complainant's statement about the sexual activity undermined the threshold reliability of her statement; and, second, in the light of the Supreme Court of Canada's recent decision in Bradshaw, released after the trial and summary conviction appeal, both the trial judge and the summary conviction appeal court judge erred in holding that the DNA evidence corroborated the complainant's hearsay statement: see Bradshaw at para. 45. We do not accept the appellant's submissions.

[10] On the first branch of his submission, both the trial judge and the summary conviction appeal court judge were well aware of the material inconsistency in the complainant's evidence. They expressly referred to it. But this material inconsistency was only one aspect of a much larger evidentiary framework on which both judges relied in finding that threshold reliability was established. That was their call to make.

[11] On the second branch of the appellant's submission, the Crown fairly acknowledges that the DNA evidence standing alone could not corroborate the complainant's evidence that she did not consent to the sexual activity. However, the DNA evidence was only part of a much broader evidentiary record about the circumstances of the sexual assault. Those circumstances included the complainant being found half naked on the bathroom floor, crying. The evidence taken as a whole corroborated the reliability of the complainant's statement: see Bradshaw at para. 4.

[12] Thus, we see no error in law in the summary conviction appeal court's conclusion, upholding the trial judge's finding that the complainant's videotaped statement met the standard for threshold reliability.

Charter s. 11(b) Delay Violation

[13] Fourth, the appellant submits that the summary conviction appeal court judge erred in law in upholding the trial judge's finding that there was no s. 11(b) of the Charter violation.

[14] The appellant does not assert that the trial judge erred in her analysis under the Morin framework. He argues that Jordan compels a different result.

[15] We disagree. The trial in this case took place and was completed before Jordan was released. Thus, the Morin framework applies: see Cody at para. 71. The appellant must, therefore, fail on this issue.

Conclusion

[16] Accordingly, the appeal is dismissed.

John Laskin J.A.

K. Feldman J.A.

R.A. Blair J.A.