Court of Appeal for Ontario

Date: 2021-01-28 Docket: C67129

Before: Fairburn A.C.J.O, Watt and Huscroft JJ.A.

Between: Her Majesty the Queen, Respondent and Sinnarajah Sivasubramanian, Appellant

Counsel: Breana Vandebeek and Mark C. Halfyard, for the appellant Erica Whitford, for the respondent

Heard: January 25, 2021 by video conference

On appeal from the conviction entered by Justice B.A. Allen of the Superior Court of Justice, dated February 22, 2019.

Reasons for Decision

[1] The appellant was a photographer who worked on photo shoots with teenage girls for certain age-related ceremonies. Following a judge-alone trial, the appellant was found guilty of multiple counts of invitation to sexual touching and sexually touching two of his fourteen-year-old clients during those photo shoots in 2001.

[2] This is an appeal from conviction. We dismissed the appeal with reasons to follow. These are those reasons.

[3] The appellant raises two grounds of appeal, both of which arise from the trial judge’s reasons for judgment. The first relates to the defence suggestion of a motive to fabricate and the second to collusion.

[4] The appellant argues that the trial judge erred by misapprehending the appellant’s position when it came to the complainants’ alleged motive to fabricate. That motive was said to arise from the fact that almost 15 years after the alleged events took place, the complainants had become involved in an organization established to assist victims of sexual abuse. The defence maintained that the complainants’ connection to that organization furnished them with a motive to lie about the sexual contact with the appellant because this would have assisted with the organization’s profile.

[5] The appellant argues that the trial judge failed to grasp this defence position. Instead of confronting the suggested foundation for the motive alleged, the trial judge is said to have wrongly focused upon what she perceived to be as an absence of any animus toward the appellant. By focusing upon an absence of animus, the appellant contends that the trial judge missed the point, thereby failing to resolve what was really in issue. We do not accept this submission for two reasons.

[6] First, we read the trial judge’s reasons as having confronted the defence suggestion of a motive to fabricate arising from the connection to the sexual assault organization. For instance, the trial judge said: “I do not accept as a reason to fabricate, the defence’s contention that TE complained to the police just to support Ms. J.S.’s project.”

[7] Second, read in context, the trial judge’s reference to an absence of animus toward the appellant makes sense. At its core, the defence position at trial was that the complainants had fabricated the allegations to help out the sexual assault organization. The effect of this submission was that the complainants were willing to falsely accuse the appellant in the interests of the organization. We need not express the obvious seriousness that would underlie any such false allegation or the drastic consequences that could flow to the appellant from such a lie. Therefore, it stood to reason that if the complainants were willing to falsely accuse their prior photographer of these crimes, they must have harboured some ill-will toward him. It is within that context that the trial judge’s comments about the lack of animus must be read.

[8] The appellant also suggests that the trial judge improperly used the absence of evidence of motive to fabricate as a means by which to enhance the credibility of the complainants. To the contrary, the trial judge gave detailed reasons for accepting the complainants’ credibility, none of which related to the absence of a motive to fabricate.

[9] Finally, the appellant argues that the trial judge erred in misapprehending the defence position as it related to collusion and in finding that there was no air of reality to the suggestion of collusion.

[10] The defence position was that the complainants and their friend had colluded, not in an intentional way, but in a way that raised the spectre of unconscious collusion, such that they had unwittingly infected one another’s evidence. The appellant argues that, at a minimum, there was an air of reality to this suggestion, rooted in the fact that the complainants and their friend knew one another, shared school venues, communicated on occasion and, to varying degrees, worked together to form the organization geared at providing support to sexual assault survivors and then worked together at that organization. Based on this evidence, there was said to be at least an air of reality to the possibility of inadvertent collusion.

[11] While the trial judge may not have specifically referred to the air of reality test, she must have come to the conclusion that there was an air of reality because she spent some time explaining why she was satisfied that there had been no collusion.

[12] The trial judge also understood the defence position as it related to collusion. She understood the essential nature of the complaint – an inadvertent tainting of one another’s evidence – and rejected it: “I do not accept the defence’s argument about distortion and false memory.” As she said: “On the question of tainting of TE’s and TS’s evidence, I see no basis to find that any communication among the women led to a polluting of their evidence. There were notable differences in their descriptions and numbers of incidents of the abuse such that I find the idea of contamination in their evidence has no foundation.” As the trial judge later explained over the course of three paragraphs in her reasons, “at most” the complainants had an opportunity to collude, but did not.

[13] It is for these reasons that the appeal was dismissed.

“Fairburn A.C.J.O.”

“David Watt J.A.”

“Grant Huscroft J.A.”