Ontario Court of Justice

Date: December 14, 2016 Court File No.: Newmarket 15-09601

Between:

HER MAJESTY THE QUEEN

— AND —

THAVAKUMAR KANAGALINGAM

Before: Justice Joseph F. Kenkel

s.9(2) RULING

Heard and Delivered: December 14, 2016

Counsel:

• Ms. Mary Lou Armour — counsel for the Crown
• Ms. Brittany Sherwood — counsel for the defendant

KENKEL J.:

[1] The Crown applies to cross-examine their witness on two prior inconsistent statements. This voir dire followed the procedure in R v Milgaard, [1971] SJ No 264 (CA) leave refused [1971] SCJ No 154.

[2] The witness is the wife of the accused. In the early morning hours on the night in question she fled her home with her 5 children and slept with them in a van in a Tim Horton's parking lot. The Crown alleges that shortly after she left, the accused confronted then stabbed a man who he thought was having an affair with his wife.

[3] The witness made a statement to police that night. Three days later she returned to the police station and made another statement pursuant to a solemn affirmation. The witness admitted on this voir dire that she made both statements as shown in the videos.

[4] Early in her testimony the witness said that she loves her husband and hopes that he will someday return to live with her and the children. She warned the Crown in examination-in-chief that she was fearful at the time she made the video and worried because of the children. She thought she could have "said some things without knowing".

[5] The brief present testimony of the witness to this point is already inconsistent with her video statements on numerous important points. The Crown submits that the requirements of s.9(2) have been met and the statements are sufficiently reliable to be fairly put to the witness in cross-examination. The defence concern is with the reliability of the two statements. The witness speaks English to a degree, but she testifies today with the assistance of a Tamil interpreter. Lack of sleep and the difficult personal circumstances of her first statement combined with some present evidence on this voir dire that she felt some compulsion to make the statements should result in a denial of leave to cross.

[6] Even where the s.9(2) criteria are met, leave to cross is not automatic – R v Taylor 2015 ONCA 448 at para 46. The test was set out in R v Carpenter (No 2), [1982] OJ No 129 (CA). The court must look at the circumstances in which the statements were made along with the reliability of the statements to determine whether the ends of justice are best attained by permitting cross on those statements. Reliability is not an essential component on this test, at least not in the same sense as it would be in connection with prior statements admitted as substantive evidence – Taylor at para 51.

[7] The fact that the statements were made in English does not give rise to a concern about accuracy or reliability where the witness plainly was able to understand questions and provide responsive answers in English. Those questions she did not understand, including those involving legal technical language were explained to her in lay terms and her answers showed she understood. She's been in Canada for 23 years and she speaks English fairly well. Her use of an interpreter at trial does not detract from that finding.

[8] The witness was alert, aware and relaxed during both statements. There is no evidence of compulsion or inducement to make either statement. She formally confirmed the voluntary nature of her attendance and statement to the police in the December 15th statement made on solemn affirmation three days after the incident. She was sober during the events in question and at the time of the statements she did not express any concern about her memory.

[9] I find that the Crown has met the statutory criteria under s.9(2) of the Canada Evidence Act RSC 1985 C-5. I find that the ends of justice are best attained by permitting cross-examination of this witness in relation to the two statements. The scope of cross-examination under this section is confined to the statement, but that may include questions that attempt to determine why a witness has changed her evidence at trial from the prior statements. R v Dayes 2013 ONCA 614, Taylor at para 49.

Released: December 14, 2016

Justice Joseph F. Kenkel