Court Information

Ontario Court of Justice

Date: October 25, 2018

Court File No.: Brampton 17-1640

Parties

Between:

Her Majesty the Queen Applicant

— and —

Charles Muthuporuthotage Respondent

Before: Justice M.M. Rahman

Counsel:

• Alanna Fedak-Tarnopolsky, counsel for the applicant
• Margaret Bojanowska, counsel for the respondent

Notice

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.

Reasons for Ruling on Application to Admit Hearsay

Released on October 25, 2018

1. Overview

[1] The respondent, Charles Muthuporuthotage, is charged with two counts of sexual assault and one count of failing to comply with a recognizance. The two sexual assaults allegedly occurred about six months apart and involve two different complainants. S.L. is the complainant on the first count, which allegedly occurred on June 12, 2016. Sadly, S.L. passed away before this matter got to trial.

[2] The Crown has applied to have S.L.'s video statement admitted under the principled exception to the hearsay rule. The Crown argued that the video statement has sufficient guarantees of both procedural and substantive reliability. The Crown's position is that the indicia of reliability are such that, had S.L. testified, her evidence would be unlikely to change if subjected to cross-examination.

[3] The respondent opposes the admission of the statements. His position is that the Crown has not established that the video statement has sufficient indicia of either procedural or substantive reliability. The respondent further argued that there are factors that undermine the substantive reliability of the statement. Any indicia of reliability are not an adequate substitute for the absence of cross-examination.

[4] These reasons explain why I have found that the Crown has not established sufficient reliability to allow for the statement's admission.

2. Evidence on the Application

[5] Applications to admit hearsay under the principled exception typically require a voir dire. In this case, neither party called any viva voce evidence. Rather, the following items were admitted by the parties on consent:

1. A DVD of S.L.'s video statement, along with a transcript of that statement.
2. A handwritten statement that S.L. said she made the same day as the incident.
3. A DVD containing audio of the two 911 calls that S.L. made on June 14.
4. A DVD containing video surveillance from the massage therapy business.
5. A DVD containing a video statement made by the receptionist at the massage therapy business at the time S.L. arrived and left.
6. A written agreement with the massage therapy business that S.L. filled out after her massage before she left.
7. A transcript of the video statement of M.S., the complainant on the second count of sexual assault.

2.1. Video Statement of S.L.

[6] S.L. had her massage therapy appointment with the respondent on June 12, 2016. She went to Peel Police and was interviewed on video about the alleged assault on June 14, 2016.

[7] In the video statement, S.L. describes how she said the respondent assaulted her. S.L. said she removed all of her clothes before the massage started. The respondent told her that skin on skin contact was best. S.L. said that, during the massage, the respondent pulled down the sheet that was covering her, exposing the top of her buttocks. S.L. also said that the applicant massaged her buttocks and between her buttocks. The respondent then moved to the interior of her thighs and touched her vagina and moved to the sides of her breasts. The respondent then asked S.L. to roll over and massaged her breasts and moved again to her vaginal area and touched it with one finger. Finally, the respondent had S.L. sit up and lifted her under her arms positioning her so her back was against his chest. The respondent then asked S.L. to spread her legs open and pushed her knees down. S.L. said she then began a conversation with the respondent about Buddhism. S.L. said that when she left the clinic, she could not even remember if she had paid, and did not remember her drive home.

[8] The video interview was conducted by one officer with Peel Regional Police's Special Victims Unit. S.L. did not give the statement under oath and she was not warned at all about the consequences of making false allegations to the police.

2.2. S.L.'s Handwritten Statement

[9] S.L. wrote a handwritten statement about two hours after she left her appointment. In that statement, S.L. wrote that the first 15 minutes of the massage were "professional and fine" and that she told the respondent she was relaxed. S.L. then wrote that the respondent "was massaging my back and lower back. More the top half of my bum. And also between my thighs and my vagina area." S.L. continued that she first thought that maybe the respondent's hand slipped. She said she then began to talk about Buddhism. The respondent continued and was engaged in conversation and S.L. wrote that "I thought this could be protocol."

[10] S.L. wrote that the respondent asked her to roll over onto her back and that when he lifted the sheet, she felt watched. She then said he began massaging her arms, then her leg and thighs and vagina and in between her buttocks, followed by her stomach and pubic area. The respondent then massaged each breast and told her she had a lump she should have checked out.

[11] S.L. said that the respondent then had her sit up and spread her knees and that he massaged her breast, arms, thighs, and vagina. She said that she went into shock as this was happening. S.L. said that she paid and was in shock and thought "maybe I did this." S.L. said she was embarrassed and that she accepted a free offer before leaving at 5:10 pm.

2.3. Statement of Receptionist and Video of Reception Desk

[12] Police interviewed Kaitlyn Hunt, who was working at the reception desk when S.L. arrived and left her massage appointment. Ms Hunt explained that she did not notice anything that stood out to her about S.L.'s behaviour after she came out of her massage session with the respondent. Ms Hunt said that S.L. described the massage as good and that she seemed to be sincere when saying this. When Ms Hunt was asked if anything stood out that would have led her to believe that S.L. was troubled by anything she said "not one bit."

[13] Ms Hunt explained that as S.L. was paying she asked S.L. if she wanted to sign up for a membership. The membership required a customer to book one session each month to receive a discount. S.L. told Ms Hunt that she wanted to book an appointment every two weeks. Ms Hunt explained that the membership only required her to come once a month, but that S.L. repeated that she wanted to come every two weeks. S.L. decided she wanted to book another appointment in two weeks. Ms Hunt explained that the membership only required her to come once a month, but that S.L. repeated that she wanted to come every two weeks. S.L. decided she wanted to book another appointment in two weeks. Ms Hunt estimated that she talked to S.L. for about ten minutes. As S.L. was walking out the door, she realized S.L. had not booked her next appointment and reminded her that they forgot to book it. S.L. said she would just call the next day to book.

[14] The surveillance video of the reception desk showed that S.L. was at the reception desk speaking with Ms Hunt for about ten minutes. S.L. also appeared to sign the membership agreement that Ms Hunt referred to in her statement.

2.4. M.S.'s Allegations

[15] A transcript of M.S.'s video-recorded interview sets out her allegations against the respondent. M.S. met the respondent at a different massage clinic than S.L. had gone to, about six months after the alleged assault against S.L. M.S. described her appointment with the respondent as starting similarly to S.L.'s. The respondent explained to her that she could remove all of her clothes and that skin to skin contact was better. M.S. removed all of her clothes except her underwear. M.S. said that, as the respondent was massaging her, he moved to the inner part of her buttocks and between her legs. M.S. described the respondent's touching of her as more than female therapists had done in the past.

[16] M.S. said that the respondent had her turn over onto her back. M.S. said that that the respondent's hand went quite low to "where the hair is." The respondent made contact with M.S.'s breasts and he continued to massage her while one of her breasts was exposed from under the privacy sheet. M.S. said that the respondent did not touch her vagina during the massage, but that he did touch her inner thighs and groin.

[17] During her police statement, M.S. acknowledged that the touching she described might have been unintentional and that it may have been a misunderstanding.

3. Parties' Positions

3.1. Applicant's Position

[18] Crown counsel, Ms Fedak-Tarnopolsky, argued that S.L.'s video statement ought to be admitted under the principled exception to the hearsay rule, because it meets the requirements of both procedural and substantive reliability.

[19] In terms of procedural reliability, Ms Fedak-Tarnopolsky argued that S.L. was subject to probing questions by the interviewing officer, and that she was not asked any leading questions. The officer asked whether the touching may have been accidental. She also noted that S.L. explained her stunned reaction to the incident and why she did not report the incident immediately.

[20] Ms Fedak-Tarnopolsky placed more emphasis on her argument about the substantive reliability of the statement. She argued that the most compelling corroboration of S.L.'s statement is the statement by the second complainant, M.S. Neither M.S. nor S.L. had met before. They described being sexually assaulted in similar, though not identical, ways by the respondent. Both were touched in the groin and breast area. Ms Fedak-Tarnopolsky also argued that S.L.'s written statement, made very shortly after the event, also enhances the reliability of the video statement because it connects it to the event. S.L. also had no apparent motive to fabricate as there was no indication she was asking for her money back from the massage, nor was she asking for any compensation from the massage therapy clinic.

3.2. Respondent's Position

[21] Ms Bojanowska, on behalf of the respondent, argued that the statement is lacking in both procedural and substantive reliability. In terms of procedural reliability, she said that the video recording is the only real safeguard. The statement is not under oath, and S.L. was not even warned about the consequences of giving a false statement. Ms Bojanowska also argued that the officer's questioning was not prodding and is hardly a substitute for cross-examination at trial.

[22] In terms of substantive reliability, Ms Bojanowska said that there is not enough corroborating evidence, and too much conflicting evidence, to find that contemporaneous cross-examination would add little to the truth-seeking process. Ms Bojanowska pointed to dissimilarities between S.L.'s handwritten statement and her video statement. She also argued that S.L.'s conduct after the massage appointment was different than what she had related in her video statement. Finally, she argued that M.S.'s allegations are not similar enough to S.L.'s such that they provide the necessary degree of corroboration to meet threshold reliability.

4. Analysis

[23] I agree with the respondent that the Crown has not shown that the statement has sufficient procedural or substantive reliability to be admitted under the principled exception.

[24] In terms of procedural reliability, I agree with Ms Bojanowska, that the fact that the statement is video recorded is the only procedural safeguard here. Procedural reliability requires that there are "adequate substitutes for testing evidence" with a witness who is present, under oath, and subject to contemporaneous cross-examination. Those safeguards may include video recording (so that the witness's demeanour is visible); an oath, or a warning about the consequences of lying; and contemporaneous cross-examination either at a preliminary hearing, or where the declarant is available at trial.[1] The statement was not under oath, nor was S.L. warned about the consequences of making a false statement. The circumstances surrounding the interview do not create a sufficient guarantee of trustworthiness.

[25] In terms of substantive reliability, I am not satisfied that the Crown has established that cross-examination at trial would add little or nothing to the process. M.S.'s statement is not sufficiently corroborative within the meaning of R. v. Bradshaw.[2] M.S.'s allegations do not allow me to conclude that the only likely explanation for S.L.'s statement is that she is telling the truth.[3] Although there are similarities between M.S and S.L.'s allegations, there are also differences. The most significant difference is that M.S. seems to say towards the end of her interview that the touching may have been inadvertent and that it all may be a misunderstanding on her part. S.L.'s allegations involve quite a deliberate and prolonged sexual assault.

[26] Moreover, as the respondent points out, there is evidence which conflicts with S.L.'s video statement, including her own handwritten statement. Those inconsistencies would be the subject of cross-examination at trial.[4] Further, the respondent correctly notes that the absence of a motive to fabricate is really just a neutral factor in the reliability analysis.

[27] The Crown has not established that the statement is sufficiently reliable to be admitted under the principles exception to the hearsay rule.

[28] The application is dismissed.

Released: October 25, 2018

Justice M.M. Rahman

Footnotes

[1] As is the case where the declarant is a witness who has given a prior inconsistent statement.

[2] R. v. Bradshaw, 2017 SCC 35.

[3] Ibid. at para 57.

[4] I am not as troubled by S.L.'s conversation with Ms Hunt after her appointment, since S.L. did not have a good memory of what had happened after the appointment and could not even remember if she paid. I do not think anything about her behaviour after the alleged assault, or her lack of memory about it, is anything more than a neutral factor in assessing her credibility.