Court File and Parties

Court File No.: 10-11086 Date: 2013-03-01 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Kunaratham Sasikaran

Before: Justice P.N. Bourque

Counsel:

• J. Fuller, for the Crown
• P. Connelly, for the accused Kunaratham Sasikaran

Judgment

Released on March 1, 2013

BOURQUE J.:

Overview

[1] Throughout the duration of their marriage, the complainant spouse alleges that she has been assaulted on average once per month, (at one point in her evidence she stated she was assaulted every day), commencing on her wedding day in November, 2005 and up to the day of their separation in November, 2010. The defendant faces 6 charges of assault upon his spouse and one charge of assault upon his child during this period.

Burden of Proof

[2] The burden is upon the Crown at all times to prove the offences charged beyond a reasonable doubt.

[3] In addition to the burden of proof upon the Crown, I must also assess the evidence in light of the directive in R. v. W.D. which states:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The Evidence of Jeyasutha Selvarajah

Events between July 1, 2005 and November 15, 2010

[4] Jeyasutha Selvarajah is the spouse of the defendant. They met in 2004 and were married on June 18, 2005. She states that at the hotel after the wedding, they began to argue about the cleaning (after the wedding) that her family did and she says in the course of the argument, he assaulted her. She states that "He was pulling my hair and slapped my face and cheeks and pushed me on the bed".

[5] She also stated that from that time onwards he would assault her about twice every month and described it as occurring every two weeks. The complainant also (in describing the reasons for the separation - and indeed during one of the assaults) indicated that he would often watch pictures of naked women on the internet on his laptop computer.

Events of February 16, 2007

[6] The complainant described that when they were living in Markham, and she was pregnant with their first child, she discovered a condom in his trousers and when she looked on his computer found emails to his girlfriend. She stated they argued and "He pulled my hair and he hit me on my back and slapped my cheek and also hit my head against the wall and it happened many times and also hit me on my face with his fist - my lip was broken - much blood on the floor and the wall". She stated that her water broke because of her fearful state and he took her to the hospital. She gave birth the next day and did not tell anyone at the hospital about the assault.

[7] When she was pregnant with their second child (and living in Richmond Hill) she was downstairs with her son and sitting on a couch. The defendant was again looking at naked women on his laptop. She asked him how he would feel if she did that and he said that if she did he said he would break my limb and he "assaulted me then - he stood up and pulled my hair and hit on my back and hit my head against the wall - and he slapped me on my cheek many times. The water bag broke because I was protecting my son". She went to the hospital and gave birth to her second son the next day.

[8] She said that she only told her family about these assaults and they said not to tell anyone else. She said that she loved her husband. She also said that the defendant threatened to leave and divorce her if she told anyone about this.

Events of April 28, 2008

[9] The complainant related that on April 28, 2008 they were talking in the family room in the house in Markham about his affair with a girl and watching naked women on the internet. The witness related that she would check his computer for emails and also look at the "history" folder to see what internet sites he was visiting. She said to him that he was lying to her.

[10] She testified that he pulled her by the hair and pushed her down onto the carpeted floor and slapped her cheek and kicked her on her neck and hit her head against the wall several times. The left bruises on my back and also on my neck.

[11] She called the police the next day. She could not call them that night because when she was assaulted by him, she picked up the phone but he grabbed the phone and grabbed the car keys and he went upstairs and unplugged all the phones in the house. She describes that he did this on many occasions and has broken the phone.

[12] She stated that she went to her mother's house and called the police the next day. She did not however make a report when the police came and described that her parents did not want her to report it and she explained that in her culture, she did what her parents advised.

Events between August 1, 2005 and September 30, 2005

[13] The complainant described that about a month and-a-half after getting married they were living at the defendant's brother's home. The witness and the defendant had been at a party and on their return home, the witness accused the defendant of "leaving her alone and flirting with other women". She states that the defendant pulled her hair and pushed her on the bed and took a belt and struck her on her backside. She said that he struck her with the metal buckle. He also struck her with a hanger. She said that she had bruises but did not show them to anyone.

[14] She stated that she would go to her parents after every time that he assaulted her and stay for a day or two. From the two most serious incidents she stayed for two or three weeks. She stated that he would come and her parents would convince her to return to him.

Incident at Parent's House

[15] She describes that she was in the car with the defendant in the driveway of her parent's house and she was scolding him about his girlfriend and his looking at pornography on the internet and he pulled her hair, and slapped and punched her.

Incident on Highway 407

[16] She states that one day she was driving with the defendant to the defendant's brother's home. She stated that she was speaking again to him about his girlfriend and his internet pornography and he struck the dashboard, stopped the car (on the side of the 407 highway), pulled her hair, slapped her and struck her. She states that her parents and her brother were following in their cars and they stopped and her mother came out and chastised the defendant for assaulting her and she went into her mother's car. Somewhat mysteriously, they all went to the brother's house for lunch, as per the original plan.

Events of November 15, 2010

[17] The complainant describes that on November 14, 2010, she chided her husband another time for watching pornography. She states that the next day, she was making dinner and her husband was in the family room with the children and he was watching pornography. She states that she came into the room and she chided him again for watching it in front of the children. She states that he became angry and came up to her and he pulled her hair, pushed her against the wall, hit her on her cheek and back, and hit her on the back and side of her head, with an open and a closed hand. She states that her son Naveen came up and told the defendant not to hit her and she says the defendant pulled his hand and slapped him on the cheek.

[18] The witness stated that she went to her mother's house the next day, some six to seven days later went to the police. She gave a statement to the police on November 22, 2010. By the way, in her statement to the police on November 22, 2010, she made no mention of the assaults in the cars that are referred to above.

Common Threads

[19] The witness was giving her evidence in an emotionless and straightforward manner. She spoke in a forceful voice (through an interpreter). She seemed to be in total self control. She did not seem to show any fear in the presence of the defendant.

[20] In all of these incidents, she appears to say that they started when she was chiding him either for his flirtatious conduct, or accusing him of having girlfriends, and/or looking at pornography. She states that she was being assaulted on a bi-monthly basis but does not give any other reasons for any of all of these many dozens of assaults.

[21] Two of the stated incidents are almost identical in that she describes them happening the day before she delivered her first and second child, and the cause for the argument was the same and the actions of the defendant are almost identical. She also describes that on both occasions her "water broke".

[22] The descriptions of almost all of the incidents starts with him pulling her hair, then progressing to a punching and a pushing against the wall or on the ground.

[23] She repeats many times over that she went to her parents many times and she went back to him and did not call the police on their advice. She justifies the delay in November 2010 by saying that her parents told her to wait a week. It seems a little hard to believe as she had already once on April 30, 2008 gone to the police, although she says that she lied, on that occasion.

[24] She was prone to exaggeration especially with regard to the frequency of the assaults. In-chief she spoke of being assaulted on a bi-monthly basis. In cross-examination she upped that to daily assaults. She was not responsive to the questions of the defence counsel. She would provide long explanations in the answer to simple questions (i.e. did you give a statement to the police....) and quite often such explanation had no relevance to the question. I don't think there was a problem of comprehension.

[25] On April 30, 2008, the witness had the police come to her home. At that time she stated to the police that she had small arguments with him but there was no violence or threats before that. In her evidence she stated that she told the police that there was a small push but there is nothing to that effect in the report. In her statement to the police on November 22, 2010, she stated that the police must have seen the bruising on her and thought she was lying. There is nothing to indicate that in the police report.

[26] I note as well that her description of the significant bruising from the assault she says took place in February 2007 (before the birth of Naveen) would have been apparent to the healthcare workers at the hospital. When pressed by the defence she said that she told a nurse she had fallen down, but she thought the nurses were "suspicious". When pressed further she said that her mother was in the room a lot. This quite frankly does not seem likely, if she was beaten in the manner that she describes.

[27] The birth of the first child follows a similar scenario, that is being beaten severely on the day before going to the hospital, but nothing is noted or done at the hospital. She would go from the hospital to her mother's with the new born and after a time would go home.

[28] She told the police that she was afraid the defendant would take away one or more of the children, but I note in her evidence she had complained that the defendant did not spend much time with the children and that was a source of friction between them.

Text Messages and Voicemails

[29] The defence put to the witness a series of text messages and voice messages exchanged between the defendant and the witness in June and August of 2010. She is constantly accusing him of being unfaithful and he is denying it. She makes no reference at all to his physical abuse of her. Perhaps of more importance is her language (some in English and some in Tamil) where she accuses him of sexual relations with many members of her family. She calls him an "asshole and a cunt.." and other epithets. Her tone (the voicemails were played in court) is strident and not in the least way condescending to him. She explained initially that this was as a result of her finally breaking free of him by the summer of 2010. That explanation broke down when she identified a text message from her in 2007, which had the same tone.

[30] In one series of text messages, the defence pointed out the incongruity of a series of texts back and forth to each other at 1:00 a.m., if as she says, they are still living in the same house together. Her response was that their son was in bed between them and they were texting each other. While I have seen instances of teens texting each other in close proximity, I have never seen the explanation that adults would text each other across the marital bed. This explanation, along with many of her other unnecessarily long explanations stretches credulity to its absolute limit.

[31] It is clear that she is continuously accusing him of being unfaithful and further is constantly making threats that he will not see the children. It is clear to any observer that she is using the children in her disputes with him. It is also clear that she does not act the part of a physically abused wife, but the part of a wife who is consumed by a raging jealousy.

The Evidence of Thusyanthan Selvarajah

[32] Thusyanthan Selvarajah is brother of the complainant. He reported that he was aware of difficulties in the marriage of his sister and the defendant. He stated that on one occasion, his sister and her husband came to the house where he was staying with his parents. It was about 8:00 p.m. and from his bedroom he heard them arguing in their SUV in their driveway. He stated there were loud voices. He did not see anything from the window. He came down and went out with his mother and his father stayed by the door. He stated that the defendant got out of the SUV and went around to the rear passenger door and reached in with both hands and "squeezed his sister's neck". This happened for a few seconds and then it stopped. He said that his father said something to him. She thinks his sister came inside and believes that the defendant did not.

[33] She states on another occasion, he was driving in a three-car convoy, with his sister and brother-in-law and their child ahead and then his brother and sister-in-law and him in another car and his parents in another. They were all going on the 407 highway to a relative of the defendant's.

[34] He says that the defendant's car stopped on the side of the 407 and they stopped behind. He saw his sister and the child get out of their SUV and go into the parents car. He did not see any assaultive behaviour by the defendant. They all went to the defendant's relative's home.

[35] He also spoke of many times seeing scratches on his sisters back and bruising on her face and on two occasions a cut lip. When asked where he saw these things he said it was at his parent's house (he did not mention seeing any of this while she was in the hospital with her children). He also stated that his sister would come to their home after fights but the defendant would come by and apologize and then she would return to him. She gave no specifics of any of these conversations but he assumed he was apologizing for assaulting her.

[36] In cross-examination, he confirmed that when he spoke to the police he did not know if the incident in the driveway was in the winter or summer. He was also not clear about timing nor the location of the parties.

[37] With respect to the assault along highway 407 he had told the police that he had actually seen the assault, but admitted he did not see any assault but when talking to the police he had simply repeated his sister's version of the events. I note that his statement to the police was given some two months after her report to the police. There was clearly a lot of discussion between the parties. After these contradictions, I must say I will have to approach his evidence with caution. It is certainly possible that he is continuing to recite his sister's version of the events in these proceedings.

The Evidence of Mrs. Selvarajah

[38] Mrs. Selvarajah is the mother of the complainant. She stated that she and her family did not want her daughter to marry the defendant. She said that she became aware of problems in their marriage about one month after the birth of their first child. She said her daughter called her and she and her son (the previous witness) went to her house and she showed them a bruise on her neck (the son did not testify about this meeting). The daughter came to live with them. She went on to say that her daughter would come and live with them every month or so and she often complained about being beaten by the defendant. She stated that the defendant would come to the house and apologize for beating her and ask her to return. The witness did not seem to object to any of this and certainly did not think it wise to call the police in any of this.

[39] She stated that one day after the birth of their first child the defendant and her daughter were fighting in their car in the witness's driveway. She went out and spoke to the defendant who explained that they were arguing, she stated that without warning and with the witness right beside them, the defendant reached from outside the car through the open door and grabbed her daughter's neck for 4 or 5 seconds. She can give no better description of the event and cannot say how hard he grabbed her or how he grabbed her (one hand or two et cetera).

[40] She states that there was an incident when they were on highway 407 in a three-car convoy going to the defendant's relatives house. She states that the defendant pulled over his car and she went up to the car and her daughter and the child got out of the car and that they came into the car of the witness. She did not say that she saw the defendant strike the daughter in any way. Of interest in the three Crown witnesses' recitation of these events, it appears that they all just proceeded onto the relatives house, and appeared to carry on like nothing had happened.

[41] Of great importance to this witness's credibility is the fact that when she was interviewed in her home by a Tamil speaking police officer, after her daughter went to the police, she stated that she did not see any incidents of assault by the defendant upon her daughter. Specifically, the incidents that she refers to in the car outside her home and on the 407 highway are things never referred to in her statement to the police (I note it was some 5 pages long and she signed each page).

[42] She also volunteered that when the daughter called the police, she did not want her to do so and told her to tell the police that the defendant and her daughter only had arguments.

[43] In my opinion, the issues referred to above leave this witness's credibility in a shambles. Unfortunately for the complainant, I believe it impacts upon the credibility of the entire Crown case.

Position of the Defence

[44] The defendant, Kunaratham Sasikaran, testified. He stated that he came to Canada from Sri Lanka with his family in 1995. He worked at menial labour and then returned and finished school. He was a chef for awhile and took courses in Information Technology and work in that field until he opened his own business.

[45] He was married in a Hindu ceremony with the complainant in June 2005. He says that things went well for him and his wife until the birth of their first child, in February 2007. They had bought a house in Markham. He denied that the complainant's family objected to the marriage. It was something of an arranged marriage and he stated that he went through her family to start the courtship.

[46] He stated that they had some arguments in the first few years, but he believed that they had a good marriage. He believes that things began to change after the birth of the first child. At the first child's birth, they went to the hospital in an emergency and the baby was born by caesarean section several days later after a difficult labour, and on the advice of their doctors. The defendant slept at the hospital until his wife came home with the child. They went to live with her parents as part of their custom for about a month, and then returned home.

[47] It was after this that she began to accuse him of infidelity. The witness referred to the voicemail, Exhibits 2 "C" and 2 "D" and stated that it was becoming regular that she would take the child and go to her parents and say that she was his "ex-wife" and say he would not see the child.

[48] I have already noted that in these emails she makes absolutely no reference to the beatings that she said in the witness box that she is getting from him.

[49] The defendant essentially denied that he ever struck or assaulted his wife. The only other matter he could comment on was the situation of the birth of his second child. He describes in a normal fashion for any married couple having a child. He denies the assaults.

[50] He spoke about the many times that the defendant would accuse him of infidelities, and for two or four days take the child (ren) and go to her parents home. He denied that he tried to go and convince her to return. He stated that he would go there to see the children, and she would then usually return in a number of days. Only once did she stay a longer period of time.

[51] He spoke of her increasing use of the children to taunt him. In his opinion this has continued and he has obtained court orders since November 16, 2010 to see his children, but only in a supervised setting.

[52] He was not challenged in any significant way in cross-examination. It was his assertion that her allegations are simply fabrications. While admitting arguments (largely over her accusations of infidelity - even with his family members) he denied that these arguments ever got physical.

[53] In sum total, there is nothing about the nature of his evidence or demeanour in the stand which would lead me to disbelieve his evidence. There were no contradictions. He seemed largely responsive to the questions as asked by both counsel. He did not go out of his way to denigrate his wife or her family, other than to say the stories were a fabrication. He seemed to be remorseful at the final state of things with his family.

Analysis of Defence Evidence

[54] If I believe the defendant, then he is entitled to an acquittal as his evidence is a complete denial of any wrongdoing. On balance, I would accept his evidence. Even if I could not accept all of his evidence, it would certainly leave me with a reasonable doubt. In any event I will go on and assess the strength of the Crown's case.

The Crown's Case

[55] On its own, I am not prepared to accept the allegations of the complainant through her own evidence. For the many reasons noted above, I did not find her a reliable witness. It is clear to me that her assertions are tainted by her jealousy towards the defendant. Her constant exaggerations about her status as a woman under the sway of her husband was rendered thin by the revelations of her voice and email messages to him, which happened at various times during the marriage, not just at the time of the break up.

[56] However, does the evidence of her brother and mother give sufficient corroboration of her story which would remove any reasonable doubt that I may have? I note that both say they saw some sort of physical evidence of abuse, but both say different things and for the most part, do not corroborate the matters spoken of by the complainant. Specifically, the complainant says that she had extensive bruising in the hospital from the previous days beating and her family members saw it. Neither the brother or the mother testified to seeing any marks or injuries from anything while at the hospital.

[57] The brother's testimony suffers greatly from the several discrepancies between his police statement and his evidence in court. Of greater importance is the fact that so much of his evidence in-chief which was presented as things observed by him, were revealed in cross-examination to be recitations of the things that his sister had told to him. His only potential observation of some assault is the incident in the driveway. It, however, is tainted by all of the above and contains its own inconsistencies. I find his evidence not capable of supporting the complainant.

[58] With regard to the mother, it is clear that her only evidence which goes beyond reciting what the complainant has told her is again the situation in the driveway. Her description is so lacking in any precision as to not be capable of credence. She cannot in any way describe the incident other than to say while she is talking to the defendant beside the car, the defendant somehow reaches through an open door to squeeze the neck of the complainant.

[59] I note as well that the evidence of the brother and mother about the driveway incident does not coincide with the evidence of the complainant. She states that he also pulled her hair, punched her and slapped her. From her description of the event, it sounded like one continuous action.

[60] Of most importance is the fact that the corroborating witnesses did not describe this incident when given the first opportunity. This is fatal to their credibility.

Conclusion

[61] It is not necessary that I review each count. Having found the complainant not credible, and her other witnesses not compelling, each count cannot stand.

[62] I find the defendant not guilty of all counts and dismiss all of the charges.

[1] (1991), 63 C.C.C. (3d) 397 (S.C.C.) at pg 409.