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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:

486.5 Order restricting publication — victims and witnesses.

(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) Justice system participants. — On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

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 File and Parties

Court File No.: Toronto Region – College Park

Date: 2013-10-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Varatharjah Thyagarajah

Before: Justice M. Wong

Heard on: May 31, October 28 and 29, 2013

Reasons for Judgment released on: October 30, 2013

Judgment on Crown Application Regarding the Admissibility of Out of Court Statement of the Complainant – Threshold Admissibility

Counsel:

J. Armstrong for the Crown

R. Lockhart for the accused Varatharjah Thyagarajah

Reasons for Judgment

Wong J.:

[1] Varatharjah Thyagarajah pleaded not guilty to sexual assault. The Crown elected to proceed summarily.

[2] This is a ruling on a voir dire on the threshold admissibility of the out of court videotaped statement made by the complainant, M.T., to police on April 8, 2010. Since that date, Ms. T. has died. The Crown called a total of three police officers and four professional witnesses; as well two civilian witness statements given to police were filed on consent, the notes of Police Constable Ritchie, the videotaped statement of the deceased and a transcript of the video, Scenes of Crime officers photographs, a police drawn composite, and two DNA reports.

[3] The Defence agreed that, subject to a ruling, the evidence on the voir dire can apply to the trial.

[4] Defence counsel does not dispute that the Crown has met the necessity requirement for the admissibility of hearsay evidence. However, the Defence submits the Court should not admit the statement because there are insufficient indicia of reliability.

[5] The burden of proof on the question of admissibility is on a balance of probabilities. For the following reasons, I am satisfied the Crown has met that burden and M.T.'s out-of-court statement to police meets the criteria for threshold reliability and will be admitted as part of the Crown's case.

The Law

[6] The Supreme Court in R. v. Khelawon endorsed a functional approach to the evidence and the court is entitled to consider all relevant factors or indicia of reliability or unreliability to determine threshold reliability. The functional approach by its nature is case-specific.

[7] In Khelawon, the Court stated that the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. First, whether the statement is made in circumstances that speak to its truth and accuracy; and therefore, the statement is inherently trustworthy. The second way is to show that its truth and accuracy can be tested. In other words, the hearsay evidence is admitted because the trier of fact is in a position to test the evidence and assess its true worth.

[8] In considering whether a statement is inherently trustworthy, the court may consider the following: whether the statement was spontaneous and reasonably contemporaneous with the events, whether the person making the statement had a motive to fabricate and was of sound mental state; whether there is any corroborating evidence; as well as other considerations.

[9] The second aspect of reliability is whether the evidence can be tested and consideration is given to whether there are any substitutes that address the hearsay dangers arising from the lack of oath, presence and cross examination. The court can consider whether there are any safeguards in place surrounding the making of the statement such as whether the statement was audio or videotaped, made to a person under a duty to record the statement, and did the witness know the statement would be publicized.

[10] According to Khelawon, the admissibility inquiry into threshold reliability is not so focussed on the question whether there is reason to believe the statement is true, but rather whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination.

Counsels' Position

[11] In this case, M.T.'s statement to police was videotaped but there was no formal caution given to her. The Crown submits the reliability requirement has been met because the circumstances in which the statement came about provide sufficient comfort in its truth and accuracy. Moreover, the Crown submits there is substantial corroborative evidence including the accused's DNA on Ms. T. to bolster the statement's reliability. The Crown argues that truth and accuracy can be sufficiently tested by means other than contemporaneous cross-examination.

[12] The Defence argues Ms. T.'s videotaped statement is inherently unreliable because it was not made under oath or caution to tell the truth; there is evidence that complainant was under the influence of both alcohol and drugs at the time of the alleged incident and, as such, her recall of events ought to be considered unreliable; there are significant inconsistencies in her initial complaint to police and her subsequent videotaped statement; as well as inconsistencies between her statement and that of the two civilians. While Defence counsel concedes the DNA evidence establishes that Mr. Thyagarajah had physical contact with Ms. T., counsel's inability to cross examine her about Mr. Thyagarajah's position that it was consensual contact or in the alternative, the defendant had an honest but mistaken belief in Ms. T.'s consent, the admission of her statement into evidence is prejudicial to his client.

Background

[13] The following background is not disputed: On April 7, 2010 at approximately 11:00 pm, the 911 operator received a radio call to attend at a restaurant in the area of Dundas and Parliament in the City of Toronto. The complaint related to an alleged "rape", but the caller who was George Chan did not have any details because he was making the call on behalf of his mother, whose first language was Mandarin. At 11:24 pm, Police Constables Mohamed Omar and David Lee arrived on scene. P.C. Omar was directed to the basement washroom, where he found the complainant, M.T., in the female washroom on the floor, kneeling, holding a chair and crying. According to the officer, Ms. T. looked like she was in pain. She was naked from the waist down: her pants were down to her knees. The officer did not ask her too many questions because his first priority was to get her medical attention.

[14] Ambulance arrived at 11:40 pm and Ms. T. was taken to Scarborough Grace Hospital. They arrived at the hospital at 12:31 am., and registered nurse Sharon Mak began her physical examination of Ms. T. and also completed the forensic examination or "sexual assault" kit. Ms. Mak collected swabs from areas where Ms. T. indicated the suspect had touched her: namely her lips, face, breasts and external genital area. She also took blood and urine samples and a DNA swab from Ms. T.

[15] Ms. Mak began her examination at 1:15 am, and at 3:15 am, she handed over to P.C. Lee, the evidence she had collected as well some of Ms. T.'s clothing.

[16] At 4:07 am, police left the hospital and at 4:31 am they arrived at police headquarters with Ms. T.. She was escorted to the third floor where she met two other police detectives: Julie Zajac and Aaron Akeson. According to D.C. Akeson, he met Ms. T. at 4:40 am, and she appeared to be very sore; she had trouble walking, sitting down and moving around. Before starting the videotape, D.C. Akeson testified he explained to the complainant that they wanted to take a formal video recorded statement from her; he explained where the microphones and cameras were situated and the overall procedure. He did not, however, ask her anything about the alleged incident.

[17] At 4:52 am., the videotaped interview began. Exhibits 2 and 3 in this voir dire are the videotaped interview DVD and the transcript of that interview. Detective Akeson described Ms. T.'s demeanour as slow and he said she was a quiet person. He testified she was responsive and she appeared to understand his questions. He felt that Ms. T. was embarrassed, but said she was still forthcoming with information.

[18] Having viewed the videotape, I agree with Detective Akeson's assessment of Ms. T. as she appeared on video giving her statement.

M.T.'s Statement to Police

[19] The video statement commenced at 4:52 am and was concluded at 5:58 am. The video shows the two officers both introducing themselves to Ms. T. and indicating that they are at police headquarters. Detective Akeson reviews with her that the interview is being videotaped and Ms. T. gives her consent. The officer asked her to tell what happened that night.

[20] According to Ms. T., she went to the Cow and Pickle restaurant at around 8:00 pm, and ate some fries with gravy and a couple of beers. There was a man and a lady working the restaurant. Closer to 10 or 11 pm, Ms. T. said she went downstairs to go to the washroom. After she finished, she tried to stand up but her legs felt weak. Ms. T. collapsed on the floor and did up her pants. She tried using the toilet to help her stand, but she was too weak. The stall door was open and she on her knees. According to the witness, she heard someone coming down the stairs so she called for help. She was on the floor when the man came in. Ms. T. did not know the man, but she asked him to help her so he tried grabbing the lapels of her jacket, but couldn't get her standing. The man then began kissing and licking her face. He then lifted up her shirt and began touching her breast; he tore off her tear-away pants and touched the outside of her vagina with his finger saying something about "I want it" and repeating that he wanted her to come home with him.

[21] Ms. T. kept telling him to stop, but the man repeated that he wanted to touch her and take her home with him. Ms. T. said she kept saying "no" and struggling with him for what she felt was about 10-15 minutes. She described the struggle as trying to prevent him from putting his hand up her shirt; trying to hit him with her hand but "that did nothing"; hitting him in the stomach or "gut" but she added that the hit was "not very hard". She also turned her head away from him when he tried to kiss her, and she tried to loosen his grip. She told him to "fuck off" and called him a "bastard". Ms. T. said did not yell very loudly because she doesn't even speak loudly.

[22] Ms. T. said the man got her standing to her feet, which was when he tore the snaps off one side of the tear-away pants she was wearing, and then the other side. He then touched her vaginal area. Ms. T. said she heard the lady upstairs yelling for them to hurry up; at this point, he let go of her and she fell back on her knees. The man left and went back upstairs. She could hear him talking to the lady upstairs but described it as "gibberish", but she heard the lady telling the man to "get out". Ms. T. told police that she was still on the floor and was trying to put her pants back on. Ms. T. said she yelled to the lady upstairs in the restaurant that she could not get up. The lady came downstairs and Ms. T. told her that she had been raped. The police arrived a few minutes later.

[23] According to Ms. T. at page 51 of the transcript of her videotaped statement, "rape" meant being "physically used" that her clothes were thrown off and she was touched, kissed and licked.

[24] In her statement, Ms. T. gave considerable details regarding the layout of the restaurant, the stairs leading to the basement, and the washroom area. She described herself to police, which appeared to be consistent with what is seen on the videotape.

[25] Ms. T. also told police that she did not recognize the suspect – she had never seen him before. Beginning at page 31 of the transcript, Ms. T. gave to a police a description of the suspect: male, 30-40 years old, approximately 5'8" tall, slim build, weight approximately 150 or 160 lbs., course black wavy hair which was down to his neck but it was not long, dark brown skin, and she thought he had a moustache and a bit of stubble, which she described as a "5 o'clock shadow", his skin was pockmarked, he wore glasses, and he had "raunchy" bad breath. Ms. T. described her attacker as "Pakistani" and that he spoke with an accent. She described his clothing as blue and white shirt, and wearing a jacket of some sort, but she could not recall what type of pants or shorts he was wearing or his footwear. Based on his overall appearance, Ms. T. described the suspect as possibly a drug user or a "rounder" – a term, I will infer meaning someone in trouble with the law.

[26] Ms. T. testified that the whole incident took around 10 minutes although it felt like a "lifetime".

[27] Ms. T. said that she had only been to that restaurant once before which was the previous summer.

[28] Prior to arriving at the restaurant, Ms. T. told police that she had been staying with a friend and at 2:00 pm, she had taken a cab to the Toronto Western Hospital until 3:30 pm. Ms. T. told police that she had osteoarthritis in both knees and had had an orthoscope on her knees two weeks earlier; which was why she was going to the hospital for a post-op check-up. Then she took a cab to the bank near Ossington; then to a Chinese restaurant for an hour or two and had two beers; then she caught the streetcar and went across Dundas Street to the Cow and Pickle Restaurant. She arrived around 8:00 pm; she spoke to two women briefly and then the ladies left. While at the Cow and Pickle, Ms. T. said she had two or three more beers. She was eating her fries but then needed to use the washroom. She hadn't paid her bill prior to going to the bathroom and had planned to return to finish her fries and then go home.

Inherent Trustworthiness

[29] As Justice Paciocco states at page 125 in his book The Law of Evidence, in terms of factors that go to inherent trustworthiness, the court can consider whether the statement was made: spontaneously, naturally, without suggestion, reasonably contemporaneously with the events, by a person who had no motive to fabricate, by a person with a sound mental state, against the person's interest in whole or in part, (and) whether there is any corroborating evidence. In addition, the court should also consider whether there were any safeguard in place surrounding the making of the statement that would go to expose any inaccuracies or fabrications. For example, was the person under a duty to record the statements; was the statement made to a public official; was the statement recorded; and did the person know the statement would be publicized.

a) Quality of the Videotape and Spontaneity of the Witness

[30] In this case, police detectives conducted their interview of Ms. T. at police headquarters in an interview room (as opposed to an interrogation room) which had good lighting. The quality of both the sound and image of Ms. T.'s interview was excellent. It revealed the tone of her voice and the facial expressions. I am satisfied the videotape is a complete and reliable record of the taking of the statement and the circumstances in which it was given. I am also satisfied that neither Detective Akeson or Zajac or any other officer who dealt with Ms. T. that evening, threatened her, promised her or intimidated her in anyway.

[31] In reviewing the videotape and reading the transcript, Ms. T. answered questions freely and naturally. Her voice and demeanour on the tape reflect that she was thoughtful about her answers, sometimes pausing before answering. For example, at page 48 of the transcript, Ms. T. initially told the officer that she "may have asked" the man to help her up, but then said, "…I think…I think…I think I asked him if he would help me". She also described what she did that afternoon before arriving at the restaurant, in a conversational natural style – pausing and thinking, and then correcting herself to be more accurate. Defence counsel argued that the officers repeated back to Ms. T. the answer she gave moments earlier – the suggestion being that the officers were leading Ms. T.. Having reviewed the tape and transcript, I do not agree. I find the statement was conducted very fairly by two experienced officers who at times referred back to Ms. T.'s initial answers to ask questions for clarification purposes or to illicit greater detail. The detectives cannot be faulted for trying to be thorough.

b) Contemporaneous Statement Taking

[32] The court has to consider whether Ms. T.'s statement was made reasonably contemporaneous to the events in question. Police were called to the scene just before 11 pm, they spoke to Ms. T. at 11:24 pm, and based on her physical condition and nature of the complaint, they quite reasonable and responsibly first took her to the hospital. When they were finished at the hospital, police returned with Ms. T. to the police station at 4:31 am, and the statement began at 4:52 am. Defence counsel argues the court should not find Ms. T.'s statement was made contemporaneous to the alleged incident because over five hours passed before the taking of the statement.

[33] Defence asks the court to consider the cases he provided which provide some guidance in terms of what courts have held to be "contemporaneous". I have looked at his cases and I do not find them to be very helpful. In R. v. Auger, the court found statements made by the complainants three hours after the alleged incident were not inherently reliable, but those statements were also not made on videotape and there were other problems with the witness' testimony. On the other hand, in R. v. J.M. the Ontario Court of Appeal upheld the trial judge's finding that the statements made in 2006 for alleged offences committed in 2004 and 2005, met the threshold of reliability.

[34] A court must consider the facts in their own case. Here I find that M.T.'s statement to police was reasonably contemporaneous to the events and that there is no evidence that her memory was adversely affected by the lapse of time. Furthermore, the reasons for the delay in taking the statement, i.e. taking her to the hospital, were wholly justified.

c) Motive to Fabricate

[35] According to Ms. T.'s evidence and it's not been suggested otherwise, she did not even know the defendant. He was an absolute stranger to her. In her statement to police, although Ms. T. was physically sore, sad, and embarrassed nowhere in her statement does Ms. T. seemingly try to exaggerate the incident or her injuries; nor does she come across as angry or vindictive. Furthermore, even if as Defence counsel suggests his client's defence is that the physical contact between the parties was consensual or, in the alternative, that Mr. Thyagarajah was honestly mistaken about Ms. T. consenting, there is still no evidence to suggest that Ms. T. was motivated to lie or to get Mr. Thyagarajah into trouble. She did not know anything about Mr. Thyagarajah, where he lived, or what he did for a living. There is no evidence that Ms. T. wanted to get him in trouble with a spouse or employer, demand any money, or the like. There is no evidence that Ms. T. benefitted by making a false statement or motivated by another person with a grievance against the accused.

d) Mental State of the Witness

[36] Defence counsel asks the court to rely heavily on the non-expert opinion evidence of two civilian witnesses, who were subpoenaed to testify but who did not attend for the trial continuation dates: George Chan and his mother Elizabeth Chan, the proprietors of the Cow and Pickle Restaurant. The son, George, was a student but after school he went to the restaurant to help his mom until around 7:30 pm, and then went home. Mrs. Chan stayed and continued to work at the restaurant until shortly before 11:00 pm, when she called police because Mr. Thyagarajah was demanding she cook him food and when she refused, he went to the basement washroom. After taking what she believed was too long in the bathroom, Mrs. Chan called for him to come upstairs. At this point, Mrs. Chan told police she heard a female voice, which turned out to be M.T. say, "I'm here". Mrs. Chan asked her if she was okay, to which the female voice replied, "Yes, I am here". According to Mrs. Chan, Mr. Thyagarajah returned upstairs and continued to demand that she cook him food. Mrs. Chan called for Ms. T. to come upstairs, too. She did not. Mrs. Chan escorted Mr. Thyagarajah to the door and called police. Mrs. Chan described Mr. Thyagarajah as "very drunk and aggressive". Moments later, Mrs. Chan went downstairs and found Ms. T. on the floor in the ladies washroom, she was unable to get up and she did not have any pants on.

[37] Mrs. Chan told police the complainant came in that night, ordered food, ate, and watched TV. Ms. T. drank at least 3 bottles of Budweiser beer. When asked by police if Ms. T. was "drunk". She said, "No, I wouldn't say drunk, but she looked high on drugs".

[38] Defence counsel asks the court to rely on Mrs. Chan's opinion that Ms. T. "looked high on drugs" as some evidence that the complainant was under the influence of at least five beers (two beers earlier in the day and three bottles of Budweiser at the Cow and Pickle) and at minimum, a painkiller; and that as such, Ms. T.'s reliability should be called into question.

[39] According to George Chan, Ms. T. was at the restaurant when he arrived after school at 3:50 – 4:00 pm. Defence counsel submits that Ms. T. having stayed in the restaurant for a total of 7 hours just sitting and watching television and eating, is consistent with Ms. T. being intoxicated by drugs and/or alcohol.

[40] Lastly, Dr. Karen Woodall, Forensic Toxicologist from the Centre of Forensic Science testified that samples of Ms. T.'s blood taken from her at the hospital at 3:15 am, revealed a blood/alcohol concentration of 37 mgs of alcohol/100 mls of blood. Calculating back to the time of the alleged offence, Dr. Woodall opined that based on an elimination rate which varies in individuals between 10 to 20 mgs of alcohol per hour, Ms. T.'s blood alcohol level at 10:30 pm, would have been in the projected range of 60-130 mgs of alcohol/100 mls of blood. What effects this blood alcohol range would have on a person would depend on their tolerance for drinking and their drinking history – i.e. how fast they consumed that alcohol.

[41] Dr. Woodall could not give an opinion on how alcohol affected Ms. T. that evening because everyone has different elimination rates and depending on whether Ms. T. frequently used or did not use alcohol would have affected her elimination rate. As well, Dr. Woodall agreed with Defence counsel's suggestion that, in general, Native Canadians have a lower tolerance for alcohol and a slower elimination rate. She could not, however, comment on what affects Ms. T. having a blood alcohol even in the higher range of 130 mgs: it was agreed that Ms. T. was of Aboriginal. And lastly, Dr. Woodall testified that if Ms. T. had taken an over-the-counter painkiller such as Tylenol, that drug would not have significantly affected her even when combined with alcohol, but the effect of any drug combined with alcohol really depends on the type of medication. In this case, Dr. Woodall was not asked nor did she perform any testing on Ms. T.'s blood or urine sample for anything but alcohol.

[42] In this case, it would be pure speculation for me to assume that because Ms. T. was Aboriginal that alcohol combined with her painkiller may have made her more susceptible to being intoxicated at the time of the incident. However, there is reliable evidence that Ms. T. did consume alcohol upwards of five or six bottles of beer over the course of an afternoon and evening and that based on the reading back of her blood alcohol levels at 3:15 am that at the time of the incident her blood alcohol would have been over the legal limit to operate a motor vehicle; and that it is reasonable that Ms. T. could have been displaying some indicia of impairment.

[43] However, the evidence does not properly permit the Court to find that Ms. T. was "drunk", as Defence counsel submits, at the time of the alleged incident or that her ability to recall the incident to police was compromised. In her videotaped statement, Ms. T. appeared on camera for over one hour with one washroom break and the transcript is sixty four pages in length. During that interview, Ms. T. appeared and sounded alert, coherent, and her answers were responsive to the questions being asked. As well, during her interviewed statement to the detectives, I noted that Ms. T. clearly appeared to have a physical disability, which affected her speech and her overall appearance. Detective Akeson also testified that Ms. T.'s speech and entire demeanour was slow and she appeared be suffering from some physical disabilities distinct from any soreness she complained of due to the alleged attack. As the time for this trial grew and the trial was adjourned twice before starting before me in May 2013, Ms. T.'s physical condition deteriorated. At the start of this trial on May 31, 2013, I heard testimony from D.C. Akeson that Ms. T. suffered from "multiple system atrophy" and that by September 2012 (the first trial date), Ms. T. was using a wheelchair which she could operate with one hand and that her ability to speak had worsened such that she would need to use a separate microphone in court. By January 2013, Ms. T. was in a long-care facility and could only speak one word at a time. By May 2013, Ms. T. was in Toronto Western Hospital with pneumonia and there was fear that she may never recover. By October 2013, the date for this trial's continuation, Ms. T. had died. Ms. T.'s date of birth was February 25, 1967. She was 46 years old when she died.

[44] As such, I am prepared to accept that on April 7, 2010, Ms. T.'s physical appearance and manner of speech certainly could be consistent with someone like Mrs. Chan assuming Ms. T. was on drugs.

[45] However, at this stage in the assessment on the threshold reliability, I find that the Ms. T.'s mental state, her memory and ability to recall and describe events was not an issue when she gave her statement to police.

e) Statement Against Her Interest in Whole or in Part

[46] When Ms. T. was found by both Mrs. Chan and the male police officer, she was not wearing any pants. According to police, Ms. T. appeared embarrassed to be speaking to them. In disclosing what she said happened to her, Ms. T. had to speak of her physical disability, her inability to get herself off the toilet, falling to the ground in a public bathroom, having to call for help, and getting that help from an unknown man. I find that Ms. T.'s statement had to reveal very intimate details to police officers, a nurse and then again on to police on videotape. I am satisfied that discussing such matters openly would have been taken seriously by a reasonable person including Ms. T.

f) Corroborating Evidence

[47] I find that it is extremely significant that Mr. Thyagarajah's DNA was found on Ms. T.'s face and breasts, which was consistent with her statement that the accused kissed and fondled her. Defence counsel suggests that this evidence is not useful in assessing the threshold reliability of Ms. T.'s statement because it is not disputed that Mr. Thyagarajah had physical contact with her, but rather the issue is whether the touching was consensual.

[48] I strongly disagree with counsel's submission. At this stage of the analysis, Mr. Thyagarajah's DNA on the complainant corroborates the witness' version of events. It does not, of course, preclude Mr. Thyagarajah from testifying and advancing a different version of events. Whether it was consensual or not is a matter for the ultimate issue at this trial, which is not being adjudicated at this stage.

g) Statements from Other Witnesses

[49] There is also consistency in the statements from George and Elizabeth Chan which support Ms. T.'s version of events: Ms. T. was not a regular in the restaurant, she was eating fries and drinking beer, she spoke to another woman earlier in the evening, Mrs. Chan yelled at Mr. Thyagarajah to "get out" and called down to the basement to her, and afterwards Mrs. Chan found Ms. T. half-dressed and on the bathroom floor.

[50] Defence counsel submits there are inconsistencies with Ms. T.'s version of events and those of the Chans. However, counsel is free to explore the significance of those inconsistencies at the trial stage.

Other Safeguards of Admissibility

[51] Ms. T. was interviewed by police not only at a police station but at police headquarters in downtown Toronto. She was escorted there by police officers after spending several hours at a hospital undergoing physical examination and the completion of a sexual assault kit. Ms. T. was interviewed in a special room with two detectives who identified themselves as police officers, who explained the procedure, who told her that the interview was being videotaped and recorded. There is no doubt that M.T. knew that what she was telling the police was very important and that based on their questioning of her, she knew that police would be trying to find the suspect. She gave a description and later on April 12th – 4 days later – went back to meet Forensic Artist, Giuseppina Orsatti, who spent over two hours preparing a composite drawing of the suspect, which Ms. T. approved and Ms. Orsatti signed. Ms. T.'s description of the suspect was consistent with what she originally reported to police on the night in question. The drawing that was prepared is a reasonable likeness similar to Mr. Thyagarajah's appearance. It is not disputed Mr. Thyagarajah was the stranger in the bathroom, who had physical contact with Ms. T. either with or without her consent. Ms. T. was consistent with her efforts to aid police in finding the perpetrator and when she was able, coming to court to testify.

[52] Even in the absence of a formal oath or caution, I am satisfied there were appropriate safeguards surrounding the making of the statement.

Inconsistencies in the Witness' Statement

[53] There appears to be a significant inconsistency in what Ms. T. initially told the first officers who spoke to her at the scene and P.C. Ricci, who at 1:10 am, met with the complainant at the hospital and asked her what happened; and later what she reported to the nurse and Detectives Akeson and Zajac. Namely, to the first responding officer P.C. Mohamad Omar and to P.C. Ricci, Ms. T. reported that the assailant "had possibly penetrated her sexually; [he used] no condom, and not sure if he ejaculated". Later to Nurse Mak and the detectives, Ms. T. stated the man kissed and licked her face and lips, touched her breast and external genitalia with his hand. However, I find that Mr. Thyagarajah is not prejudiced by Ms. T. not being present for the cross examination because that inconsistency exists from the evidence of the police officers who recorded Ms. T. complaining about a different version of events. This issue ought to be properly argued in terms of ultimate reliability of Ms. T.'s evidence.

[54] In terms of her videotape statement, I disagree with Defence counsel submission that Ms. T. gave different versions of the events to the detectives, in particular whether she was on the ground the whole time versus standing. I also disagree with counsel that at this stage of the analysis the Court needs to find whether or not it was even possible for Mr. Thyagarajah to attempt to forcibly remove her pants while holding her up and her struggling back.

[55] While there may have been questions Detective Akeson did not ask Ms. T., I am not satisfied that at this stage of the proceedings that this is a proper basis for the exclusion of the evidence. Any shortcomings to Ms. T.'s statement relates to the ultimate reliability of her statement.

Conclusions

[56] I am satisfied that circumstances under which M.T. gave her videotaped statement to police were such as to guarantee its reliability, irrespective of the unavailability of cross examination. "Guarantee", as the word is used in the phrase "circumstantial guarantee of trustworthiness", does not require that reliability be established with absolute certainty. Rather it suggests that where the circumstances are not such as to give rise to the apprehensions traditionally associated with hearsay evidence, such evidence should be admissible even if cross examination is impossible.

[57] As stated in the Supreme Court of Canada case of R. v. Smith:

[W]here the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.

[58] This is a judge alone trial and I am satisfied that I can properly evaluate the evidence in this case.

[59] I find the Crown has satisfied the burden of proof and the hearsay statement of M.T. will be admitted on this trial as part of the Crown's case against Mr. Thyagarajah.

Released: October 30, 2013

Justice M. Wong