Court File and Parties

Date: March 30, 2017

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

D. Steinberg, for the Crown

— And —

Jason Jesupillai & Charles Jesupillai

H. Morton, for Charles Jesupillai; Jason Jesupillai representing himself

Heard: March 3, 2017

FELDMAN J.:

Introduction

[1] Jason Jesupillai and Charles Jesupillai are each charged with one count of assault. It is alleged that on January 18, 2016, the defendants, who are brothers, assaulted Shamini Jothieswaran, a cousin with whom Charles is in a common law relationship. There are no particulars of the alleged offences.

[2] Ms. Jothieswaran did not call the authorities about the alleged offences, but rather spoke to her sister, Sudarshini Ramana, who in turn called police to report that Shamini had been assaulted and was in fear of her life. When the police came to her home to investigate the allegations, Ms. Jothieswaran denied being hit by the two men.

[3] In her testimony, Shamini maintained that position. She was dismissive of the Crown's questions, indicating that she wanted no part of the proceedings. In her demeanour, but more significantly in her many implausible answers, I found her to be unworthy of credit.

[4] The only evidence supporting the allegations came from Sudarshini, who testified to hearsay utterances made to her by Shamini contemporaneous to the events in the home. Mr. Steinberg, for the Crown, submits that this evidence is admissible for its truth under the Khan principles as a necessary and reliable exception to the hearsay rule: R. v. Khan, [1990] 2 S.C.R. 531. Mr. Morton submits that the admission of the statement is unnecessary as the complainant is not a recanting witness, and that in any case it lacks threshold reliability. Ultimately, he says it would be dangerous to convict on this calibre of evidence and that its admission would result in a prejudicial effect out of proportion to its probative value. Jason Jesupillai adopted counsel's submissions.

[5] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[6] Ms. Jothieswaran testified that she became involved with Charles in 2008 and has a 7-year old daughter with him. She told the court that prior to Jan. 18, the relationship was peaceful and problem-free, although reluctantly and inconsistently conceding that the police were called to their home on several occasions in the past. She does not recall her husband being arrested in May 2010 for assaulting her with a broom handle, nor on Nov. 23, 2012, for grabbing and pulling her into her house. She claims not to be sure Charles was on bail on May 5, 2013 for another alleged assault, at the time he was arrested in her bedroom. She says her lack of recall is as a result of her being busy at work and with her child. Her evidence in this regard is disingenuous at best.

[7] Ms. Jothieswaran told the court that until Jan. 18 she spoke to Sudarshini daily, but denies telling her sister on that day that she had been assaulted. She no longer speaks to her because of the trouble her sister caused her for purportedly no reason by having the police come to her home, she says, because Sudarshini doesn't care about her. She appears to infer in her sibling a nefarious intent that cropped up on the sudden in an otherwise close and long-term sibling relationship. On its face, in the context of all the evidence, this assertion insults the intelligence.

[8] P.C. Jorge Lee arrived at the complainant's home at 9:45 p.m. in response to a radio call alleging a domestic incident. He heard muffled yelling from outside and a loud male voice speaking in an angry tone.

[9] Neither Jason, nor Charles would let the officer enter. P.C. Lee described Jason's demeanour as aggressive and belligerent. He smelled alcohol on his breath. Charles initially interfered with the officer's attempt to arrest Jason, but backed off.

[10] P.C. Lee observed that Shamini was upset, had red, puffy eyes and was possibly crying. He noted that she denied being assaulted.

[11] By contrast, Ms. Jothieswaran testified there was nothing untoward occurring when the police arrived. She indicated that both brothers had been helping her daughter with a school project. She said there was no yelling, that Charles was probably drinking alcohol and that Jason never does. She essentially asserted that Sudarshini made up a false story in her call to the police, a claim that in the circumstances belies common sense.

[12] What Sudarshini told the court was that Shamini called in the evening of Jan. 18 in tears to say the defendants were hitting her and that if something happened to her it would be because of them. The line disconnected. When Sudarshini called back, she got voicemail.

[13] Sudarshini said she panicked. She spoke to her mother in India and other sister in Australia, both of whom suggested she call the police. She did so.

[14] In the 911 call, Sudarshini reported that Shamini said, "they are going to kill me today, I'm scared". That is a fact. However, surprisingly, in her testimony, the witness says she is sure she never said that to the police. Whatever her motivation, perhaps to salvage her relationship with Shamini, that assertion is questionable and weighs on the ultimate reliability of her evidence.

Is the Hearsay Statement Admissible?

[15] I am satisfied on this evidence that the Crown has met the Khan criteria for admission of the statement. Ms. Jothieswaran is a recanting witness, as was the case in R. v. Pritchett, [1995] O.J. No. 3277 (Ont. C.J., Gen.Div.), where the complainant made utterances to a friend contemporaneous to the events that were at odds with her testimony. Relying on the decision in R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257(S.C.C.), Langdon J. was of the view, at para. 29, that the prior inconsistent statement of a witness testifying at trial meets the necessity criterion.

[16] Similarly, in R. v. Caplette, 2007 SKPC 27, the court held that the earlier hearsay statement was necessary evidence because the same quality of evidence could not be obtained at trial. As well, the fact that a witness is available at trial does not preclude her prior statement from being necessary.

[17] I am satisfied, in addition, that threshold reliability has been met, in the sense that "the evidence is worth receiving for assessment by the trier of fact": R. v. Chretien, 2014 ONCA 403. There are a number of reasons. The statement at bar was made contemporaneous with the alleged offences. The officer's observations of the complainant's demeanour were consistent with the import of the utterances. And on this evidence, I draw no inference that the statement was contrived, although its worth was diminished somewhat by Sudarshini's likely convenient memory loss regarding the threat-to-kill allegation.

[18] Of significance, Sudarshini was available for cross-examination. Under this criterion, that is the most important factor supporting admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents: R. v. Youvarajah, 2013 SCC 41.

Does the Prejudicial Effect of Admission Outweigh the Probative Value of the Evidence?

[19] Mr. Morton submits correctly that notwithstanding this conclusion, I have discretion to exclude the statement because its prejudicial effect outweighs its probative value: R. v. Khelawon, 2005 SCC 57. He points out that the conversation between the sisters was in Tamil and not reported word for word, that Sudarshini's testimonial reliability was questionable and importantly, that the material assertions in the utterances were vague and lacked particularity.

[20] For the reasons noted earlier, however, there is sufficient evidence to meet the low test for threshold reliability. It is rather in the weighing of the evidence that counsel's submissions hold sway.

[21] The behaviour of the defendants on Jan. 18 was aggressive, that of the complainant cowering. It is probable that Shamini was assaulted in some manner. However, the context is unclear and there are no material particulars upon which to cross-examine, injecting an element of unfairness into the trial process. I am uncertain on this evidence what occurred in Shamini's home and am left in reasonable doubt in this regard.

[22] The Crown has not met its onus. The charges will be dismissed.

Released: March 30, 2017

Signed: "Justice L. Feldman"