Court File and Parties

ONTARIO COURT OF JUSTICE DATE: January 22, 2022 COURT FILE No.: Brampton 3111 998 20 8531

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

THABOTHARAN SUBRAMANIAM

Before: Justice G.P. Renwick

Heard on: 18-19 May, 02-04 November 2021 and 20 January 2022

Reasons for Judgment Released on: 22 January 2022 [1]

Counsel: S. Burton, for the Crown J. Neiman, for the defendant Thabotharan Subramaniam

REASONS FOR JUDGMENT

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with having assaulted and threatened his wife with death. The evidence was taken over five days throughout May and November 2021. In addition to the complainant (Hamshaayini Thabotharan) and an investigating officer (Andrew Irmya), who both testified for the prosecution, the Defendant testified during his trial.

[2] The only issue raised by the parties at the conclusion of the trial is whether the allegations are proven beyond a reasonable doubt.

[3] The Defendant asserts that up until the allegations, there was little marital discord. The Complainant testified about a history of turmoil leading up to her initial report of the alleged assault. There was some circumstantial evidence to corroborate the allegations. For the reasons that follow, I find the Defendant guilty as charged.

LEGAL PRINCIPLES

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed an offence, he will be acquitted of the charge.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [2] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[6] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[7] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[8] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down W.(D.) into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[9] Also, I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of a witness’ role, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.

[10] Lastly, circumstantial evidence has been produced during the trial. Evidence of the result of the alleged assault, an apparent injury to the complainant’s arm, came from both the complainant’s testimony and photographs she took, in addition to other circumstantial evidence. [3] As with all matters to be proven by circumstantial evidence, in order to be satisfied beyond a reasonable doubt that the Defendant caused the complainant’s injury, I must be satisfied that it is the only reasonable inference available on the evidence. [4] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its high burden.

[11] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[12] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, to review the transcripts of the trial, and to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS OF FACT

[13] The assault allegation played a predominant role in the trial and will occupy a similar seat in this analysis.

The Alleged Assault on 15 June 2020

The Testimony of the Complainant

[14] Hamshaayini Thabotharan was the main witness for the prosecution. She is the Defendant’s wife. At the time of the allegations, they lived together with their three young sons. Since the allegations, the Defendant has been prohibited from having contact with the complainant and family law proceedings have commenced.

[15] The complainant testified over the course of three full days and for less than an hour on the fourth day. Her examination in chief was completed in the afternoon of the first day she testified. The cross-examination was lengthy and repetitive.

[16] The complainant testified using a Tamil interpreter. She testified that she could speak some English, but she cannot read in English, and her overall proficiency in the language is limited. This limitation was not challenged by evidence or through cross-examination. I accept that the complainant has a genuine difficulty understanding and communicating in English.

[17] My overall impression was that this witness reasonably weathered her cross-examination. I have kept in mind that after day two, there was a gap of more than five months before the complainant’s evidence completed. Obviously, gaps in time cannot justify significant evidential inconsistencies or other indicators of untruthfulness, however, they may account for minor testimonial frailties.

[18] The alleged assault was the result of an argument between the complainant and her husband that erupted as she was dealing with a situation with one of their children. The young boy had been toilet training and had soiled his pants. The complainant spoke loudly and reminded the child he is to use the toilet when required. This caused the child to cry. The Defendant entered the home, he saw that the child was crying and began to yell at his wife for having scolded the child. The complainant said that the Defendant called her “bad words” and then he slapped her face twice and he grabbed her hair. She explained that she then grabbed his hand and her nail scratched his finger. At this point he grabbed her right forearm tightly, just above her wrist and squeezed, causing one or more glass bangles on her wrist to break. She was in pain, she cried. The children cried. The Defendant released his grip, he pushed her down by her shoulder, he used more “bad words,” and he went outside.

[19] The complainant testified that this incident was not unique in their marriage. She told the court that the Defendant had frequently used force against her during their relationship.

[20] At this point it bears noting, that the prosecutor never brought an application to introduce prior alleged acts of violence, pursuant to the principles enunciated in R. v. D.S.F., [1999] O.J. No. 688 (C.A.). Neither party contested the admissibility of the complainant’s repeated references to a history of intimate partner violence. Regardless, I have not relied in any way upon these untested, unproven, alleged bad acts. This includes for propensity reasoning, to better understand the complainant’s evidence, or for greater context of the relationship between the parties. I have given this evidence absolutely no weight.

[21] On this occasion, after her husband had gone outside, the complainant says that she fed her children and called her mother overseas to tell her about the incident. Her mother apparently called the Defendant and then afterward she told the complainant that he was still upset, he would not calm down, and he was threatening to take the children away and to send the complainant back to Sri Lanka. Some three hours after this incident, after having spoken to her mother, the complainant called 9-1-1.

[22] Exhibit 1 on the trial is the 9-1-1 recording. The first minute of the 9-1-1 call is chaotic. Children are yelling throughout:

Call-taker: 9-1-1, do you need Police, Fire, or Ambulance? Hello? HT: Hello. CT: Do you need the Police, the Fire, or the Ambulance. HT: The police. CT: You have the Police, what’s the address. HT: Number 5 Idol Road. CT: 5 Idol Road? HT: Yes. CT: And what’s the emergency? HT: Family issues. My husband is hurting. CT: Sorry. HT: My husband is [inaudible – HT sounds upset]. CT: Ma’am, I can’t understand you. What did you say? HT: My husband’s going to hurt me, my finger and also my kids also. Please come over here, please. CT: Okay. Is your husband still there? HT: Ya, my husband is upstairs, please come over here, please. CT: He’s doing what? HT: My husband’s 5 Idol Road? CT: Your husband’s at number 4? HT: Sorry? CT: Okay, this is 5 Idol Road, right? HT: No; number 5 Idol Road. CT: Number 5 Idol Road. HT: Brampton. CT: Okay. ‘Kay, number 5, right? HT: Ya, number 5. CT: K, like 1-2-3-4-5? HT: Ida Road, I-D-O-L. CT: You need to speak closer to the phone okay. I have a lot of questions I need to ask you. Can you go into another room? HT: Sorry? CT: Can you go into another room, please?

[23] At approximately two minutes and thirty seconds of the more than 13-minute call, the following is heard for the next three minutes:

CT: Does you husband have a gun or a knife or another weapon. HT: No, no. Nothing. I’m …the bangle…going to him [inaudible]…finger…[inaudible]. CT: Ma’am? HT: [continues talking, but it is indecipherable]. CT: Did he…are you injured? HT: My hand…[inaudible – female sounds upset]. CT: What did he do to your hand? HT: [inaudible] started everyday; he’s going to push me, he’s going to hurt me, he’s going to punch it, everyday. I’m going to [inaudible]. CT: Okay. Okay. Okay, take a breath. HT: I have three children, I can’t do it. CT: There’s three children there? HT: Sorry? CT: There’s three children? HT: I have three children. And also, [inaudible] can hurt my children also. He’s going to tell me about [inaudible]. CT: Okay. HT: …hurt my children. I would never hurt my children. You can ask if you want, my children, who is good. CT: Did he say he was going to hurt them? Ma’am, did he say he was going to hurt the kids? HT: Sorry, Ma’am? CT: Did he say he was going to hurt the children? HT: Sorry, I can’t hearing you [inaudible]. CT: Did your husband say he was going to hurt the children? HT: Ya, my husband has hurt the children and he hurt me. CT: Okay. What did he do to the children? HT: I don’t know. He mentally upsetting. I don’t understand. But, I, uh, …my father and mother…I am a single…I don’t have any other family here. They all going back home. So, they are family, my husband’s family in Canada. So they have so many supports. Everyday he’s come and he’s going to fight. Everyday fight. Everyday he going to… CT: Okay. So what did he do…what did he do today? Ma’am? Ma’am? HT: I can’t do it. CT: Ma’am? Do you need an ambulance? HT: No ambulance. Just come [inaudible]. CT: Ma’am, ma’am? Are you injured? HT: [inaudible] CT: Are you injured? HT: [inaudible] CT: Are you injured? HT: Sorry? CT: Are you injured? Do you have an injury? HT: What do you mean, ma’am? CT: Do you have an injury that requires an ambulance? HT: I don’t understand the English. CT: You said that your hand. HT: [inaudible] I don’t know that. CT: You said that your hand is hurt? HT: I don’t understand that [inaudible] I don’t know [inaudible]. CT: Okay. Is your hand, is your hand hurt? HT: What did you say ma’am? CT: Okay. What’s your last name? HT: My last name, Thabotharan – T-H-A-B- CT: Sorry, I need you to spell that a lot slower, please. Thank you. “T”… HT: T-H-A- CT: Yep. HT: B-O CT: V-O? HT: T-H-A CT: T-H-A HT: R-A-N CT: R-A-N. “N” is like, like “Nancy?” HT: Ya [inaudible].

[24] At approximately six minutes and 40 seconds on the recording, the call-taker asks where the complainant’s husband is. The complainant says “upstairs” and tells the call-taker he is “going to fight” and “he went outside.” When asked if the caller’s husband was aware that police were called, the complainant said, “yes.” When asked if he would be “violent or aggressive with officers,” the complainant said, “my husband’s going to put the violent for me.” When asked “is he going to fight with the police officers” the complainant said, “No, no, no. Nothing. I need to talk to, I need to talk to the police, please.” When asked if her husband has “any mental health issues,” the complainant said, “I don’t think so. I don’t know, ma’am.” When the call-taker asked whether the husband had threatened to kill anyone today, or if he had threatened to hurt her, or if he had threatened to kill himself, the complainant answered “I don’t know” each time and when the last question was repeated, the complainant said, “I don’t understand, what you saying.”

[25] After 11 minutes of the recording, the complainant expresses her general frustrations with caring for the children, not working, and begins to get upset as she says, “I’m going to explain my police, please.” When asked if he had put his hands on her neck, after a few repetitions of the question, the complainant said, “no, in my hand, my hand.” When asked the same question, she responded, “no, no, no. Hand, hand,” and “I have a mark on my hand.” When asked if she understands “most English,” the complainant said, “ya, little bit. I can’t speak not very well…”

[26] The Defendant cross-examined the complainant at length on the contents of the emergency call. I remind myself that a prior statement cannot be used by a party to substantiate the claims made during the testimony of a witness. This is impermissible oath-helping and only confuses the credibility assessment. It is trite to note that consistency in repeating falsehoods does nothing to establish their validity.

[27] However, to the extent that the cross-examination of the complainant suggested that she did or did not tell the “police” or the call-taker certain things, in an effort to impeach the witness, the contents of the recording are relevant. The 9-1-1 call is also relevant to the complainant’s level of emotion, approximately three hours after the alleged assault.

[28] The complainant was asked in chief if the Defendant had ever hurt the children. The complainant was always clear that when they fought, the children often came in between the two and because the Defendant has long nails, when he pushed the children away, they would sometimes get hurt. The complainant was also clear throughout her testimony, including approximately 10 times when it was discussed during her cross-examination, that the Defendant did not intentionally injure any of the children.

[29] Having heard the 9-1-1 call several times during my review of the evidence, I conclude that the complainant’s references to the Defendant hurting the children are not inconsistent with what she told the court. When they fight, the Defendant sometimes unintentionally hurts the children. This is not obvious to the call-taker, but when I consider the entirety of the recording and the entire evidentiary landscape, I am satisfied that the complainant was not impeached by the contents of the 9-1-1 call. It is clear in the call that the complainant is not alleging that the Defendant abuses her or the children. Although she attempted to advise that her hand had been “hurt,” and there had been physical fights between them, the complainant was calling the police to have them come so that she could speak to them.

[30] The complainant introduced photographs of a mark left on her right forearm, taken by her after the incident. The photographs became exhibit 2 on the trial. The photographs show a set of two distinct diagonal lines on the inner forearm at the wrist. The complainant testified that these marks were caused by the Defendant when he pressed her bangles into her arm, before one or more of them broke.

[31] The complainant’s cross-examination was detailed, thorough, and challenging.

[32] The complainant’s description of the two allegations was always consistent. The Defendant had slapped her face twice, he pulled her hair, she scratched him, he grabbed her wrist, her bangles injured her arm, he pushed her down, he called her names and he left.

[33] Much time was spent going over the complainant’s statements to the police (exhibits 3 and 4). There are several observations to make.

[34] Both statements were recorded on statement forms. The forms were hand-written by Constable Andrew Irmya. There is no contest as between the parties that the complainant spoke in broken English to describe her allegations, the officer wrote down her statement, and she signed each. [5]

[35] During cross-examination and submissions much was made of the contents of the statements and what was apparently left out.

[36] It was put to the complainant in cross-examination that she had told the officer she had disciplined the child for having soiled himself and she had mentioned that she had raised her voice. The complainant denied these suggestions. I do not know the genesis of these suggestions but they do not reside in the written statement from 15 June 2020. The first statement only appears to support the Defendant’s theory that the complainant had yelled at their child, where it reads, “My husband is angry with me, saying why you shouting, why is he crying. I never talked to him.”

[37] I also note that one part of this statement reads, “My voice is so bad so I’m doing a little bit loud.”

[38] The complainant never testified that she was yelling or scolding her son. She testified that she was explaining to him that he is supposed to use the toilet. She told the court that she has a bad ear and speaks loudly because of it. [6] I accept that the complainant has bad hearing. To the extent that the 9-1-1 call bears it out, the complainant asked for things to be repeated, several times. Her hearing was never directly challenged.

[39] I find that the word “voice” in the complainant’s statement was either a transcription error or the result of the complainant having used the wrong word. I accept as fact that the complainant did tell the police about her bad “ear” (not “voice”) and this was a simple error on the part of the officer when writing the statement, or, if she used the word “voice,” she simply misspoke.

[40] The complainant always agreed that the police likely read the statement back to her before she had signed it. This was a fair concession. However, the testimony of Cst. Irmya is silent on the point. The officer only testified that he did not have a Tamil interpreter, he listened carefully to try to comprehend all that the complainant told him and after he wrote her statement in English, she signed it.

[41] Given the complainant’s level of emotion that day, the details she was providing, and the limited English of the complainant, I am not satisfied that it is proven that she was read her statement, but even if that occurred, I accept that she did not notice that the statement erroneously had the word “voice” instead of “ear.”

[42] Despite the cross-examination, I do not find that the complainant was impeached in any respect by her prior statement of 15 June 2020.

[43] Many parts of the complainant’s testimony satisfy me that she was trying to be truthful during her evidence. I will note several.

[44] The complainant was firm that the argument on 15 June 2020 occurred when the Defendant came into the house and saw their son crying. There is no reason for the complainant to maintain the Defendant’s absence before the incident, especially when it was suggested that the Defendant heard the commotion and came from his computer room upstairs. When she testified, the complainant would have had no way of knowing that the Defendant would eventually testify that he was upstairs when she discovered her son’s soiled pants. She would have no way to know that the Defendant would claim that she was beating their son and he had left the computer room to confront her about it. I accept that this is an example where the complainant was trying to be truthful about her recollection of the Defendant’s location prior to the assault.

[45] Also, I note that the complainant was a careful witness. She did not testify to things that she did not understand or things she did not accept as accurate.

[46] During her evidence in chief after the lunch recess, the prosecutor asked, “how many times did he hit you in the head.” She answered that she was not hit in the head, “he pulled my hair.” During the first day of her cross-examination, the complainant was asked about the statement she gave to the “investigating officer.” She asked if “investigating officer” meant the police. Later that day, also in cross-examination, it was suggested that “someone” contacted her home for the Defendant to have access to his children. She answered, “it was not someone, it was a friend of his. That person contacted me.” Lastly, toward the end of that first day testifying, the cross-examiner asked about the complainant’s “evidence today” that she never told investigators in relation to the 15 June incident that the Defendant would never hurt his children. The complainant explained that she did not understand the use of the word “evidence” in that context. Lastly, when it was suggested that the complainant would do “anything” to safeguard her children, she indicated that she would do her “best” but that did not mean that she would do “anything.” These are only a few examples of an attempt to answer questions carefully and truthfully.

[47] There were areas of the complainant’s testimony where she appeared to speak objectively or in a balanced way. As indicated, the complainant admitted that on both occasions, the police may have read her statement to her before she was asked to sign them. There is no evidence that this ever occurred. Likewise, when the cross-examiner suggested to the complainant that she was told before giving her first statement that it is a criminal offence to mislead the police, she testified that she was very emotional and her understanding of English is limited, but she may have been told this, she was unsure. The complainant accepted these and other suggestions in cross-examination when it was appropriate and reasonable to do so.

[48] One of the major consistencies in the complainant’s testimony was that the Defendant had never intentionally hurt their children, although he had unintentionally scratched them, on occasion, when they came between the couple during their interactions. The complainant was always clear that the Defendant would not intentionally harm the children. This was balanced and it was never suggested that the Defendant had ever gratuitously hurt his children.

[49] The last example of balance is found in the complainant’s admission that when she grabbed her husband’s hand as he was pulling her hair, she scratched his finger with her nail. Interestingly, the Defendant testified that he was never scratched or injured by the complainant, during their argument. Again, the complainant was balanced in her testimony about her role in the physical altercation.

[50] It is my assessment that these examples enhance the complainant’s credibility.

[51] In cross-examination, it was suggested that the complainant never told the police about a history of violence in the home. The 9-1-1 call demonstrates that this was an inaccurate question. The complainant testified that she tried to provide historical context to the 9-1-1 call taker as well as the officers who came to her home. She testified that the officers who took her statement only wanted her to discuss what had happened that day, and that was what she told them. Constable Irmya was never examined on this point. Again, I accept this evidence as a reasonable and truthful explanation for why the complainant’s first statement is silent about the alleged history and the second allegation before the court.

[52] To be fair to the witness, there were other difficulties with the cross-examination. During the first day of her testimony, it was suggested that the complainant never told the 9-1-1 call-taker that the Defendant had assaulted the children. The call recording demonstrates the opposite. Also, when the cross-examination began on day two of the trial, the questions suggested that the complainant had testified that she had told her mother that the Defendant had said he was going to assault the children, rather than the other way around. As well, just before the afternoon recess on 19 May 2020, the following cross-examination took place:

Q: Well I listened to the [9-1-1] recording and you listened to the recording, and I'm going to suggest to you that when you called the police three hours after the incident you were begging them to come to save you from your husband? A: So I, I wanted them to come so that they can and I can speak with him. I tried to, he was very angry and I need someone to be a mediator in between. I tried to have my mother do that, but it did not work. So that is why I called emergency and I, I asked them to help. Q: You made it sound like you were in imminent danger and harm when the incident that you alleged occurred, occurred three hours before, and everything was perfectly calm in your house at that point? A: No, not everything was calm. My children were in the back and he was still angry. He had, my mother had spoken to him and his anger did not subside. He was even more angrier. So previously when there is a fight his anger would subside. But on that day the anger did not subside. It had increased. So that is why I tried to get my mother's help. But it did not work. So that is why I called the emergency and asked for help for them to come and help. Q: You fabricated the story about my client punching you in the face twice, or hitting you in the face twice. You fabricated the story about my client pulling your hair or pushing down on your hair. And you fabricated a story about my client squeezing, squeezing a bangle on your arm and causing a contusion on your arm? [my emphasis]

[53] With respect, “begging,” “imminent harm,” “punching,” and “pushing down on [her] hair” were mischaracterizations of the 9-1-1 call and the complainant’s testimony. These and other questions were either inaccurate or otherwise misleading and only added to the difficulties understanding the evidence. However, when the entirety of the complainant’s evidence is assessed, both for internal consistency, and across all of the evidence, it is my view that the complainant was truthful and reliable at all times.

[54] In terms of the complainant’s reliability, the Defendant suggested that the complainant was a difficult witness. Moreover, it was suggested that she was unreliable because it is unfathomable that, as a woman, the complainant would not know the colour or size of the bangles she wore on 15 June 2020. Leaving aside the potential mischief of this anachronistic thinking, I accept the complainant’s explanation on these issues.

[55] I accept that the complainant was not prepared to guess about the bangles she wore many months before testifying. She told the court at one point that the bangles may have been green. She was unclear on the number of bangles she wore, but she was certain that they were round, there was more than one, they were made of glass, and one or more of them broke when the Defendant tightly gripped her wrist.

[56] Constable Irmya confirmed that he saw both the injury on the complainant’s arm and the pieces of the broken bangle on the floor. I have no difficulty accepting any of the complainant’s evidence on the basis of her inability to more specifically describe the type and number of bangles she wore that day. I accept that part of her evidence that she threw all of her glass bangles out because she did not want a reminder of this incident. That was a plausible explanation and I accept it.

[57] It should also be said that I do not accept the Defendant’s submission that this traumatizing event should have seared its details permanently into the complainant’s memory and her inability to testify with more precision about the bangles should detract from her credibility or reliability. There is no evidence before me respecting how memory should work or how this complainant’s memory should work in the circumstances. Even accepting the defence theory - that the complainant injured her own arm by smashing it on a wall - there is no readily apparent explanation for the complainant’s inability to provide details about the number, colour, size, and other descriptors of the bangles, beyond her claimed lack of memory. The imprecision in the evidence does little to enhance the authenticity of the complainant’s apparent fabrication. In other words, there would be no reason if she were lying about the allegations to deny memory of the specifics sought. In sum, I find that the composition of the bangles is a peripheral issue.

[58] Counsel for the Defendant submits that the use of the singular, “bangle” in the complainant’s statement is dispositive that her testimony of more than one bangle is inaccurate. I disagree. The interpreter made a point during the second day of evidence to express:

INTERPRETER: When we speak in Tamil, not necessarily it is always spoken in the plural when it comes to the bangle. So the witness has been using the word ideally in a written form that would be meaning one single bangle. So as I have, I am not so sure how I have to interpret it. So that's why I have been using the perfect way of interpreting it as bangle. But it could also be taken as bangles in a colloquial way, Your Honour.

[59] Moreover, I have taken nothing from the use of the singular in the complainant’s written statement to police because it is obvious that she was speaking in broken English and the officer was doing his best to record the words she used.

[60] There were many motives suggested by the Defendant during the complainant’s cross-examination: she wanted a divorce; she had had enough of the Defendant; she wanted the Defendant out of the house; she knew if he were arrested he’d be prohibited from speaking with her or having contact with her; she wanted the Defendant out of her life; she fabricated one allegation to support the other; if she is the victim of domestic violence she will get subsidized housing; she wanted him removed from the home; and she wanted the Defendant removed from her life and their children’s.

[61] During his testimony, the Defendant also suggested that the complainant may have been having an affair and she was speaking to his banker and may have wanted to separate and benefit financially.

[62] Whether it was through cross-examination of the complainant or the Defendant’s testimony, there were numerous motives suggested to suspect fabrication or untruthfulness on the part of the complainant. While more will be said about the Defendant’s testimony later, on the basis of his evidence I was not even remotely satisfied that the complainant had a motive to call the police or testify untruthfully.

[63] Despite the suggestions of motive(s) to mislead the police and fabricate the allegations, I accept the complainant’s testimony on this issue. She was believable at all times. I am not satisfied that it has been shown that the complainant had any motive to misrepresent the truth to the police and/or the court.

[64] In saying this, I have cautioned myself that the lack of positive evidence of a motive does not equate to the lack of a motive. Many times, motives are unknown or unprovable unless the person with motive confesses them. Regardless, this is an issue that I have considered and rejected on all of the evidence before the court.

[65] In the end, I accept the complainant’s evidence that she was trying to be a patient wife. She wanted to keep her family together. I accept the unchallenged testimony of the complainant that in her culture, intimate partner issues are generally kept quiet. I accept the complainant’s testimony that she was fearful on 15 June 2020, the Defendant could not be calmed, even after he spoke to her mother, and she called the authorities to help resolve the tensions in the home.

[66] I also accept the unchallenged and uncontradicted evidence that the complainant did not know that the Defendant would be arrested and separated from the family when she called the police. The complainant testified about her lack of understanding of these types of matters and how they are handled in Canada. This makes sense. The complainant is a newcomer to Canada (although not recently), she does not work, she is not fully fluent in English, she does not handle the family finances, and she appears to have lived a relatively sheltered existence while raising her family.

[67] An example of the complainant’s naivete is found in part of her testimony toward the end of her cross-examination on 02 November 2021. The complainant testified that the Defendant had transferred the ownership of “his” house (their matrimonial home) to his sister. From this evidence, I infer that the complainant was unaware of the most basic principles of family law, the division of property, and the significance of the matrimonial home.

[68] While it is not corroborative evidence, nothing in the 9-1-1 recording disturbs my assessment in this area. In the end, the only motive I can find is that the complainant was trying to seek help to calm her husband, she called the authorities because she was scared, and she was truly ignorant of the possible repercussions of talking with the police about violence in her home.

[69] The Defendant raised an apparent major inconsistency within the complainant’s testimony. Toward the end of the complainant’s cross-examination on the first day of the trial the following testimony was heard:

Q: I'm suggesting to you that in your evidence in-chief you were telling us, you told His Honour that you were concerned for the safety of the children, that my client had assaulted the children in the past. That’s what you told us in-chief, did you not? A: He, he - when he spoke with my mother, he said that he would assault the children after, but it has never happened up to now so - and what I was concerned was if he was with us then he would assault me and then at some point he would get angry and he could assault the children as well. [my emphasis]

[70] This was apparently a new allegation that had not yet been heard. The Defendant alleges that the complainant was then inconsistent when it was re-iterated the next day once cross-examination resumed.

[71] The testimony on day two of the trial began as follows:

Q: I'd like to focus on a, a response that you gave when, when my client spoke to, to your mother. Do you recall calling [sic] us that when my client spoke with your mother you said he'd assault the kids as well, or that it may have happened? A: But it never happened to them. Q: I believe you went on to say, I was concerned he would assault the kids. Sorry, I was concerned he would assault me and get angry and assault the kids as well. Do you recall making that statement to me? A: No. Q: You didn't say that to me? A: No. Q: So if I were to suggest to you that you made that statement, your response is you didn't? A: When, when there is a fight the children when they get in between they get hurt by the nails. He pushes them. He doesn't go and purposely assault them. When the children get in between during the fight they get affected. Q: That wasn't my question. I was asking you if you recall telling your mother that my client had threatened to assault the kids. The day of the incident. The day of the incident, just after the incident when you telephone your mother. Did you tell your mother that your, that my client had said that he, that he said he'd assault the children as well? A: No, I did not. Q: And do you recall telling your mother also that you were concerned that he would assault you and get angry and assault the children as well? A: No. I, I did not. I told only about during the fight his nail hurts the children. He pushes them. He shouts at them. That is what I told my mother. How many times is this question going to be asked? [my emphasis]

[72] Well it is true that it appeared that the complainant introduced a new allegation (that the Defendant had told her mother that he would harm the children), as the transcript above demonstrates, the matter was not accurately put to the witness on day two. This added more confusion to the issue.

[73] Moreover, I find that the original question asked in cross-examination appeared to have confused the witness. The issue being raised in cross-examination seemed to relate to a long response given on p. 11 of the transcript of 18 May 2021 as the complainant was describing her conversations with her mother after the incident:

…So I, I told my mother what had happened, that there was a fight and that he hit me and then my mother told me that she was going to call him and she called him. So, so when my mother called him, he had even, even used bad words at her and he had told that I was mental and that, that he was going to get the children and was going to chase me back to Sri Lanka. He had told her things that hurt her. So my mother then called me and told me that he is not calming down, that he is very angry, that he may do something to me and my children and it is after that that at around 8:45 I called 911. I called the emergency because I feared that something may happen to me and my children. So after, after I called, in about five to ten minutes the police came. [my emphasis]

[74] When I look at all of the evidence, I find that the complainant’s testimony about the double hearsay (he told my mom who told me) is unclear in parts. The witness tried to resile from what she had first said, afterward. I find that the witness was confused when she gave this testimony. It was not entirely responsive to the question about her concern for the children or whether the Defendant had assaulted them in the past, and counsel’s manner of examination on the point, multiple times, did little to clarify the situation.

[75] In the end, the accuracy of the report of double hearsay is not an issue I need to decide. The testimony of the complainant suggests that she misspoke, or was misinterpreted, because she not only denied the content of the double hearsay, but she denied ever having reported this to the court.

[76] When I take all of the complainant’s evidence into account, I am not prepared to reject the entirety of her testimony on the basis of this apparent misunderstanding of a hearsay conversation where it is not known what the complainant’s mother actually heard, what she actually told the complainant, why the complainant may have interpreted the hearsay the way she did, or why the complainant testified as she did. This was a peripheral issue (a conversation after the alleged assault), it involved multiple layers of hearsay, and the apparent lack of consistency in the complainant’s testimony on this issue does little to impact my overall assessment of the complainant’s truthfulness or accuracy.

Some Corroboration

[77] There was some corroboration of the complainant’s allegations and testimony found in the evidence. The photographs taken by the complainant supported the complainant’s version of events. The Defendant does not challenge that the complainant had marks on her arm before speaking to the police, but the provenance of the marks was the central issue.

[78] It was suggested that the complainant caused her own injury. It is unclear on the evidence how she may have struck her arm on a wall and how a wall might have created the marks seen by the police and recorded in exhibit 2. It is obvious that neither the 9-1-1 recording, the photographs, or the officer’s observations of the marks on the complainant’s arm can establish when or how the marks were created. [7]

[79] I find that Cst. Irmya’s testimony corroborated the complainant’s testimony, to a small degree, in three respects. First, the officer testified that he saw pieces of a broken bangle when he investigated the allegation. This accords with the complainant’s testimony that she possibly showed the bangle fragments to the officer. Second, the officer observed that the complainant’s hair appeared dishevelled. Again, if the complainant’s hair had been pulled, this could account for what the officer had observed. Third, the complainant was emotional and distressed. Though the Defendant admits he quarrelled with the complainant, he testified that it was for less than one minute. It is hard to reconcile the complainant’s demeanor on the 9-1-1 call, and that which was observed by Cst. Irmya, but for a significant and upsetting event. Again, these pieces of circumstantial evidence provide only limited corroborative value. They cannot speak to when or how the complainant became upset.

[80] As well, although this is not positive evidence, the complainant’s narrative is not contradicted by any of the physical evidence in any measure. If anything, the marks recorded in the photographs, the complainant’s demeanor, and her appearance are all consistent with what the complainant says occurred.

The Defendant’s Remaining Arguments

[81] I have made no attempt to dispel all of the Defendant’s concerns with the complainant’s testimony. I have carefully re-read all of the trial transcripts and I have considered all of the matters raised during closing arguments. Many of the remaining arguments concern other matters that are not at the heart of the allegations. Though helpful in determining the overall value of the complainant’s testimony, little can be gained to by repeating the remaining arguments, save one.

[82] The Defendant submitted that the delay between the alleged assault and its reporting reflects negatively on the complainant’s credibility. I would add that a significant delay in reporting allegations should also factor into reliability assessments: the account ultimately provided may be less accurate if the delay is significant.

[83] I have carefully considered these arguments. Respecting the assault allegation, the testimony provided by the complainant reasonably explains her delay in calling the police. She offered the following reasons for the three-hour delay before she called the police:

-this was not a one-off, unusual event; -the Defendant usually calmed down following a fight, but this time he did not; -she needed time to speak with her mother to decide what to do; -the complainant’s mother tried to calm the Defendant; -the complainant’s mother spoke to her a second time; and -she had to feed the children.

I accept the complainant’s rationale that the Defendant had not calmed down and she was concerned. As already indicated, I find that the complainant only contacted the police to have them assist to mediate the tensions in the home. When considered in light of all of the evidence in the trial, this explanation for the delay in calling police made sense and I believe it.

[84] Lastly, I have also instructed myself to be cautious about accepting the testimony of the complainant. It is largely uncorroborated. It is completely contradicted by the Defendant’s testimony. Also, there was delayed disclosure of both allegations. The complainant was married to the Defendant and may have had misgivings about their life together. I remind myself that a witness’ testimony is not to be believed simply because the witness has made allegations, charges were laid, the allegations have been described consistently, or because the witness has marks on her arms.

The Defendant’s Testimony

[85] The Defendant testified on his behalf. He was a calm, personable witness. He has post-graduate level education, he is able to articulate himself, and unlike his wife, he appeared knowledgeable about several potentially complex areas: computers, banking, and family law.

[86] As a witness, the Defendant was a poor historian. His accounts shifted, even during his examination in chief. I am not satisfied that the Defendant was even minimally truthful on material issues.

[87] When asked in chief about the matrimonial home at 5 Idol Road, the Defendant indicated that he never had any “legal” relationship to that home, as it was his sister’s. Then he said that it was owned by his mother’s company and his mother is the sole owner of the company. Then he said that he did not know if that was still the case. I must confess, even on such a simple issue as the ownership of the matrimonial home, I became skeptical with this part of the Defendant’s testimony.

[88] The Defendant testified in chief that the incident began when he was in the computer room at the top of the stairs in the family home. He testified that his wife had hit their child “for no reason,” and she had “really hit him strong.” He admitted that when he heard the child crying, he came out of the computer room. He testified that the complainant hit the child twice more and she was reminding him that he is not to go to the bathroom in his diaper. He claimed that he told her that this is not Sri Lanka, it is Canada and she cannot beat the children. He says, he was screaming, which made her scream too. He claims that the complainant put the child down and he returned to his computer room. At some point, she came to the computer room and asked him to fix the internet. He said that he would. He told her to change the child’s diaper. He realised that she would not do that if he remained in the house, so, he went outside.

[89] I noted on the record that when asked to describe how the complainant was beating the child, the Defendant first made a motion with his left hand above his head. I observed that the Defendant used his right hand to make a slapping motion in front of his chest. When his lawyer asked him to give as much detail of how the child was hit, the Defendant’s description of how the child had been held changed. The prosecutor put comments describing both actions on the record. The Defendant’s testimony continued:

MR. NEIMAN: Q: So could you explain.... A: So you asked me how she grabbed the - how she held the child and so what I wanted to tell was that it is not a small object to hold like this. MR. NEIMAN: Q: When you say not a small object to hold like this.... A: It cannot be held like this so it has to be hugged, that's the only way.

[90] It appeared that the Defendant was trying to explain his earlier motion by saying that was not the way his wife had held the child, because the child was not a small object. I did not believe this part of the Defendant’s evidence. His words when describing the motion he first made do not align with the subsequent explanation he tried to give about what had not occurred.

[91] He went on to describe the hitting motion and how the complainant had used her hand. When I listened to this description, it seemed as though the Defendant was describing all of the four or five slaps she gave the child, including the ones he never saw.

[92] Then he testified that he had heard three or four hitting sounds before he left the room. This would mean that the number of slaps the child received had gone from four or five to five or six.

[93] The Defendant was clear that he did not go downstairs or near his wife during their argument. They were only in the same area when she came upstairs, some time after the argument, to ask him to fix the internet connection.

[94] The next time he described what he had said to the complainant about being in Canada not Sri Lanka, he added to what he had said the first time:

A: So I scolded her saying that this is Canada, this is not Sri Lanka. There are laws for the children here. You shouldn't be hitting children and because I was on the phone I went back to the computer room.

[95] I note that he did not provide this much detail the first time he told the court this, he reversed the order of the two countries, and this second iteration did not mention that his wife had put the child down, before he returned to his phone call.

[96] The next time he provided an account of this incident he testified:

Q: And can you tell us how your wife reacted when you told her this is Canada and not Sri Lanka and you can't be treating, beating your children like this. A. She screamed at me. She said something which affected me very badly, she said this is my child, I will hit the child, I will hit the child, I will kick the child, I will do whatever.

[97] As I said, it seemed that the Defendant’s testimony fluctuated each time he recounted an event, initially all while testifying in chief.

[98] The other large contradiction in the Defendant’s testimony that arose in chief, occurred when he spoke of the possible motives of the complainant to fabricate the allegations. After the introduction of the sixth exhibit in the trial, on 04 November 2021, the following exchange took place:

MR. NEIMAN: Q: What made you sure – you said before that your wife wanted a divorce. What made you so sure, Mr. Thabotharan [sic] – Mr. Subramaniam, that your wife wanted a divorce, at the time of the, of the June 15th event. A: There are two main reasons. So she speaks with some wrong other friends and she gets some unnecessary information and then she fights with me. So my mortgage was with the RBC bank and she was friends with a lady who worked at the RBC from 2019 for about a year. And she has got the information, information about how much the mortgage is, how much equity is there and if we sell how much money can be made. She got all those informations from that lady. She also got advice from that lady that if she gets a divorce, she will get 50 percent and that's the Canadian law. That was the first motivation for her. So after the 15th of June incident, I complained to RBC directly, as well as I complained through my lawyer as well. The RBC manager called me and verbally accepted that that it had happened. On many occasions they have checked my profile and got the information. So the first motivation is the large amount of money, that she got brainwashed by that… [the answer continues with another possible motive].

[99] To be clear, this was a completely collateral issue. However, the Defendant sought to introduce this evidence to suggest another possible motive for the complainant to lie. Hearsay aside, the Defendant certainly added a lot of detail about a mortgage for a home that only the day before he had testified was one for which he had no legal responsibility.

[100] It also rang hollow toward the end of his examination in chief when the Defendant was asked about his feelings, given his situation. [8] He testified, I am not angry with my wife, even now. I am ready to reconcile with her.”

[101] In cross-examination, the Defendant’s testimony deteriorated even further.

[102] It turned out, that the Defendant was not only on a phone call when the incident began, but it was a job interview. He had kept the door to the computer room open, despite the possibility of noise from his three children downstairs, he had muted the phone and left the computer room when he claimed to have heard his wife scolding and hitting their son, he observed the hitting, he argued with his wife, and after 30-60 seconds, he returned to the job interview, and nobody was the wiser. Strangely, until the cross-examination, there was never a mention of the job interview, despite the number of times the Defendant spoke about the incident and his return to a phone call. [9]

[103] Interestingly, the Defendant actively resisted the suggestion that the complainant had injured him during the incident on 15 June 2020. This denial is consistent with the Defendant’s version of events: there was no physical confrontation because he was nowhere near the complainant when they argued.

[104] I find as a fact that the complainant scratched the Defendant during the incident. As noted above, I accept that the complainant’s testimony of the physical interaction between them was logical, consistent, and accurate. I reject the Defendant’s evidence on this point. I find that the Defendant falsely testified that before the incident began, he was inside the house, upstairs, for a job interview. I find that the Defendant told this narrative to bolster his evidence that he had actually heard his wife hitting their child, but he never physically confronted her.

[105] When I consider all of the Defendant’s evidence and its malleable nature, I completely reject the Defendant’s testimony as internally inconsistent, inconsistent with evidence that I accept, and I find that his testimony was wildly far-fetched, untruthful, and calculated to mislead.

The Alleged Threat in Early June 2020

[106] During her evidence in chief, the complainant also described an incident that occurred earlier in time, toward the first part of June 2020. The Defendant had been drinking beer. The two quarrelled about something. He is alleged to have approached the complainant and threatened to kill her. She testified that he held the beer bottle and he approached her in a “killing manner.” The complainant testified that the only reason the Defendant stopped was because the children were in between them and she had begged him not to harm her.

[107] The beer bottle incident was always described consistently by the complainant throughout her testimony: they were arguing, he approached her with a beer bottle in his right hand, he used the words (in “our language”) “I will kill you,” [10] and he only stopped because the children were there and she pleaded.

[108] When asked why the complainant had not made an earlier report of the threatening allegation, she testified that the officers had asked her to describe what had happened on 15 June. She also testified that she did not know that she could report earlier instances of violence when she spoke to the police. Lastly, it was explained by the complainant that it was only after she had told her family lawyer about the threat that she had learned that she should report it to the police.

[109] I accept this explanation as rational and accurate. As indicated above, the complainant did not appear sophisticated or knowledgeable of Canadian laws and police investigative procedure. I would also note that neither of the complainant’s statements include questions of the history between the parties or other allegations. The closest the investigator seems to have come was to ask on both occasions, “anything else.” The complainant testified that she was not aware that she could include prior violence in her statements to police. Though she was extensively cross-examined on this issue and the delay in reporting the threat, her explanations were not contradicted. I accept this evidence as true.

[110] Much was made by the Defendant of the complainant’s testimony that the Defendant had approached her in a “killing manner.” I agree with the submission that this phrase was never recorded in the complainant’s statement to the police. That said, the actual written statement is fairly brief. It was written down by the officer, in English. It was based on what the complainant had told the officer in broken English. In fact, the statement supports a finding that the complainant perceived that the Defendant had approached her in a threatening manner. The use of the words “killing manner” during the complainant’s testimony was not such an embellishment of her purported perception of the level of the treat, to require the court to discount her evidence on the matter, entirely.

[111] I find that this omission from the complainant’s statement did not detract from the complainant’s credibility or reliability. The complainant testified that she had specifically asked for a Tamil interpreter when she requested to speak to the police on 30 June 2020. It is obvious from both the 9-1-1 call and her earlier statement that the police were aware of the complainant’s difficulties in English. This evidence was not contradicted or challenged. If there is any failing in the contents of the complainant’s statements, no blame should fall on her.

[112] The Defendant denied the threat allegation. However, he did remember drinking beer at a time that could include this incident in early June 2020. He told the court that he does drink beer in bottles on occasion. He recalled having left a beer bottle in the kitchen when he argued with his wife about a camera cord, and he testified that he had not consumed any beer after that date and before the night of his arrest.

[113] The Defendant repeatedly used his testimony to repeat his beliefs that his wife had hidden his wallet and cut the camera cord, in addition to reiterating that she had asked him to hit her because she wanted a divorce. Though I place little weight on demeanor evidence, especially that of a defendant, [11] I had the sense during the Defendant’s cross-examination that he used many unsolicited opportunities to malign the complainant’s character. This too, detracted from the reliability of this testimony.

ANALYSIS

[114] In consideration of all of the evidence adduced during the trial, I have completely rejected the Defendant’s testimony on material points as entirely incredible, unreliable, and untrue. That said, I do not hold this against the Defendant. Moreover, this finding does little to advance the analysis.

[115] When I consider my rejection of the Defendant’s evidence, I am satisfied that it does not leave me in a state of reasonable doubt concerning these allegations. Again, this finding does little to advance the analysis.

[116] I have considered whether the evidence that I do accept proves anything.

[117] In the end, after a thorough consideration of all of the evidence and submissions, I am entirely satisfied that the testimony of Hamshaayini Thabotharan was truthful and accurate throughout. It aligns in several respects with, and is supported by, other direct evidence: the testimony of Cst. Irmya’s observations of the complainant.

[118] As well, the circumstantial evidence (broken bangle pieces, a mark on the complainant’s arm, her dishevelled hair, and her level of emotion while reporting the assault) leads me to only one conclusion when considered as a whole and in the totality of all of the evidence received during the trial. I am satisfied that the circumstantial evidence in this case corroborates the complainant’s testimony of an assault committed by the Defendant.

[119] On all of the evidence, I am satisfied that the allegations of an assault and a death threat committed by the Defendant upon the complainant have been proven, beyond a reasonable doubt.

CONCLUSION

[120] I find Thabotharan Subramaniam guilty of both charges on the Information.

Released: 22 January 2022 Justice G. Paul Renwick

Footnotes

[1] Within hours of the release of these reasons, several corrections were made and it was re-released.

[2] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[3] Constable Irmya testified that he observed pieces of a broken bracelet on the floor of the residence.

[4] R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26-36, 41, 42, 55, and 56.

[5] In the first case, the complainant testified that the officer had forgotten to have her sign the statement initially, but he returned later in the evening for that purpose.

[6] The complainant blamed her hearing on a prior assault at the hands of the Defendant. This is an unproven allegation which is given absolutely no weight in my analysis.

[7] As indicated, I have not used the 9-1-1 call to support the complainant’s testimony. It is included here simply because the complainant did advise the call-taker that she had a “mark” on her “hand.”

[8] I took the word “situation” to mean, the false allegations, his wrongful arrest, and his unjust separation from his home, his wife, and his children.

[9] To be fair, although the Defendant testified that the job interview took place during a zoom meeting, the Defendant was consistent that he used his cell phone for the meeting, and it was only an audio call.

[10] I have counted more than 10 times where the complainant has described the alleged threat in her testimony. The alleged threat was always described in identical language: “I will kill you.”

[11] I cannot imagine the stress of testifying in a trial as an accused and I have discounted presentational deficits during the Defendant’s testimony.