NEWMARKET COURT FILE NO.: 12-08070

DATE: 20150916

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JEYASINGAM THURASINGAM
Appellant

B. Guertin, for the Crown

J.Hechter, for the Appellant

HEARD: August 28, 2015

REASONS FOR DECISION

On Appeal From the Decision of the Honourable Justice R.A. Minard dated May 6, 2013

HEALEY J.

Nature of the Appeal

[1] The appellant was found guilty of assault with a weapon, namely a purse, after a trial before the Honourable Justice Minard of the Ontario Court of Justice.

[2] There are two primary grounds for the appeal: (i) the Honourable trial judge erred in admitting an out-of-court statement for the truth of its contents; and (ii) the verdict was unreasonable as there was no basis on which to found a conviction on the sworn evidence before the court, absent reliance on that statement.

[3] Three witnesses testified at the trial: (i) an officer who did not witness the events alleged, having attended the home in response to a 911 call; (ii) the appellant’s son, John Jeyasingam, who was home at the time of the alleged events; and (iii) the appellant’s wife, the complainant Rathika Jeyasingam.

[4] An unsworn, out-of-court statement made by the appellant’s son, which was audio-recorded at the police station, was found to meet the test for threshold reliability by Justice Minard and admitted for the truth of its contents.

[5] The appellant asserts that in relying on that statement, the trial judge misapprehended the contents of John’s statement.

[6] The appellant’s position is that first, the out-of-court statement was unreliable and should not have been admitted, and that further, the contents of the statement were subject to material misapprehension by the trial judge, and therefore, the verdict should be overturned.

Summary of the Facts

[7] This is one of those cases where the facts appeared to be very different on the night of the alleged offence than they appeared to be at trial. To summarize, the testimony of the witnesses that is alleged by the Crown to have captured the events of the night in question were as follows:

• The complainant placed the 911 call.

• The detective who responded to the call observed the complainant crying and holding her left arm.

• John initially advised the detective that his mother had fallen.

• The complainant advised the detective that her husband had hit her with a bag in the living room.

• The detective then questioned John again, who apologized for lying and advised that he heard an altercation but was not present.

• John gave a statement to the police approximately two hours after the incident, which inculpated the appellant. The main points of that statement are:

(i) John was asked by the interviewing detective to tell him what he knew and what he saw that night;

(ii) John replied that he was upstairs sleeping because he was sick and heard his father yelling at him to come down;

(iii) He described that his father “got pissed” and his parents were talking back at each other;

(iv) He described that when his father “got pissed”, he took a purse, describing it to be a black and reddish colour, about nine or ten inches tall and wide, light in weight;

(v) When asked where the purse was when his father took it, his answer was that he did not know, as he was upstairs sleeping;

(vi) He stated that he came downstairs and saw his dad “hitting”. The exact words were “…I was, umm, upstairs sleeping right, so I came downstairs and, umm, saw my dad hitting”;

(vii) He could not recall with which hand his father held the purse;

(viii) When asked the question “and what part of the body did he hit your mom with?”, his response was first to identify the right arm, and then change the answer to identify her left arm;

(ix) When asked the question “how many times did your dad hit her with the purse?”, his response was that he thought it was twice;

(x) When asked the question “how hard did he hit her with it?”, his response was, at first, that he did not know, and then altered that response to state “medium”;

(xi) He stated that his mother was crying when she got hit with the purse;

(xii) He stated these events happened in the living room;

(xiii) He stated that after hitting his mother with the purse, his father was in the kitchen eating and then got in his car and left.

• The detective located the appellant in the home, whereupon he was arrested.

• The complainant was taken the hospital for x-rays, which were negative.

[8] At trial, John recanted his statement to the police. The Crown cross-examined him pursuant to s. 9(2) of the Canada Evidence Act. John claimed that the information he provided to the police in his audio statement had been given to him by his mother, and that he had not witnessed any of the incidents that he described in the statement. During the Crown’s cross-examination, John testified that he talked to the police before talking to his mother, but that he had told the police the truth in his statement. John later restated that he talked to his mother prior to giving his statement to the police. John’s trial testimony on this point is unclear. When asked about telling the officer that he saw his father hitting his mother’s left arm twice, the questioning proceeded as follows:

Q. Is that what you told the officer? We heard that.

A. Yeah. I did, but I didn’t really, um, see my dad doing that.

Q. But you told the officer that you did.

A. Yeah. No, I was – meant to say my mom, um told me everything and….

Q. Your mom told you what happened?

A. Yeah. Told me what happened, yeah.

Q. When did she do that?

A. Um, the end of that day.

Q. At the end of the day?

A. Yeah. No, um, inside the car.

Q. Inside a car?

A. Yeah.

Q. Okay. Is this after the police have arrested your dad she told you what happened?

A. Yeah, after. Yeah.

Q. Okay. So before the police came, when the police arrived you hadn’t talked to your mom about what happened?

A. No.

Q. Okay. And we hear you giving this statement to the police….

A. Yeah.

Q. …right? That’s before you talked to your mom about what happened, right?

A. Yeah.

Q. Do you see where I am going? You spoke to the police before you talked to your mom about that happened.

A. No. After everything was over then I went to the station and they recorded me – after, um, when everything was over.

Q. After everything was over.

A. Yeah.

Q. But you talked to the police officer that we heard on the recording there….

A. Yeah.

Q. …you talked to him before you talked to your mom about what happened?

A. No. Um, I was inside the car with me and my mom. I was inside the car, right.

Q. Before you gave that statement?

A. No, it was, um, before we went in the car. No, it was after.

Q. After the officer recorded that statement with you….

A. Yeah.

Q. …you talked to your mom about what happened in the car?

A. No, no, no. I didn’t understand. No, that was before.

Q. You talked to your mom before you gave that statement to the police?

A. Yeah.

Q. Okay.

A. That was before.

Q. Your mom didn’t tell you to lie, did she?

A. Um, I don’t know.

[9] This excerpt makes clear that John’s trial testimony on the issue of the timing of speaking with his mother is ambiguous. This style of communication characterizes aspects of both his trial testimony and his statement to the police; he communicates his thoughts in a rambling format at times. It was open to the trial judge to interpret John’s answers, given the uncertainty and number of times that he changed his mind, as being an attempt to cover up the truth. Justice Minard deals with this issue in his ruling on the voir dire as follows:

So, in my view, it is clearly a recantation. He never suggests in initial examination on the voir dire that he was confused. He indicated when asked why did he not tell the police that he was telling them just something his mother had told him, that he did not see this, in other words, why would he lie to the police and say that he saw this and his evidence essentially, he said he did not know.

[10] At trial, John testified that he was upstairs sleeping when he was woken by a soft noise, which made him run downstairs. He found his mother in the kitchen on the main level and everything was normal, so he went back upstairs to sleep. When asked whether he told the truth to the police officer who recorded his statement that evening, his response was that he did not. He did not know what happened, and did not see what happened, and that what he told the police did not really happen on that day because he was not there, he was upstairs sleeping. Yet when asked whether he lied to the officer at any point in his statement, his response was that he did not know. He testified that he had meant to tell the officer that he had been informed of the events by his mother. John also testified that both his mother and father work, and both of his parents help him pay for school. He testified that he was close with his father, and there was no evidence to suggest that he did not have an equally close relationship with his mother.

Legal Analysis

[11] The admissibility of a hearsay statement is a question of law and is thus reviewable on a correctness standard: R. v. S.(S.), 2008 ONCA 140, 232 C.C.C. (3d) 158, at para. 29. Absent an error in principle, a trial judge’s determination of threshold reliability of a hearsay statement is entitled to deference on appeal. Trial judges are best placed to assess the hearsay dangers in each individual case: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 44.

[12] In R. v. S.(S.), at para. 30, the Ontario Court of Appeal confirmed that an appellate court should defer to the trial judge’s weighing of the relevant factors, so long as that judge has addressed the factors germane to the reliability of the hearsay statement, did not fall into any material misapprehension of the evidence relevant to those factors, and has made a reasonable assessment of the weight to be assigned to those factors.

[13] In R. v. Morrisey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) (C.A.), at paras. 83 and 93, Doherty, J.A., writing for the court, indicated that a misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then the appellant has not received a fair trial, and is the victim of a miscarriage of justice. This is the case even if the evidence, as actually adduced at trial, is capable of supporting a conviction.

[14] If the misapprehension relates to a key piece of direct or circumstantial evidence, it is more likely to have tainted the trial judge’s reasoning process. In contrast, if the misapprehension relates to an issue that was not central to the trial judge’s conclusion, or if the other evidence would have inevitably led to the same conclusion, there is no miscarriage of justice: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 33-35.

[15] In R. v. Chretien, at paras. 51-52, the court stated that assessing the threshold reliability of a statement can include a variety of considerations. Aside from the standard B.(K.G.)[^1] indicia of reliability, threshold reliability of an out-of-court statement may be established on either of two non-exclusive bases: substantive reliability or procedural reliability. Substantive reliability can be established through sufficient circumstantial guarantees of reliability, or inherent trustworthiness. Procedural reliability can be established by the presence of adequate substitutes for testing the truth and accuracy of a statement.

[16] I concur with the Crown’s position on this appeal that the trial judge did not err in the principles that he applied in his consideration of the out-of-court statement. He recognized that certain indicia of reliability were absent, such as lack of an oath. However, his reasons on the s. 9(2) application refer to numerous indicia of reliability including: (i) the proximity of the statement to the offence, being within hours; (ii) the details in the statement and the corroborating evidence, such as the description of the purse; (iii) no motive to fabricate, a lack of animosity and a close relationship with his father; (iv) the witness’ understanding of the solemnity of the occasion. Procedural reliability was also satisfied by the fact that John was available for cross-examination, and the statement was audio-recorded.

[17] All of these are proper considerations in determining the threshold reliability of a hearsay statement, and therefore, its admissibility. I can find no error in principle in the trial judge’s consideration of proximity, the weight given to John’s relationship with his father, which militated against any motive to fabricate, or the consideration or weight that he gave to the details of the incident. Nor did he make an error with respect to his evaluation of the necessity of admitting the statement: the witness had recanted from his earlier statement, and when asked whether he remembered talking to a police officer about his father, John’s response was “um, no, I didn’t”. Moments later in his testimony he did recall talking to the officer about his mother’s purse, but denied that “that” had really happened, stating “but that didn’t really happen because I wasn’t there, right, when that happened. I was upstairs sleeping”.

[18] The only real issue on this appeal is the degree to which Justice Minard may have misapprehended the contents of John’s statement to the police. The argument of the appellant focuses on the comment made by the trial judge at p. 55 of the trial transcript, during his ruling on the voir dire, as follows:

The witness has recanted the audio statement which in essence suggests strongly that he was an eye witness to the actual assault and there is no suggestion in it that he was simply recounting something that his mother told him. In fact, he specifically says that he came downstairs and saw his father striking his mother with the purse. [Emphasis added]

[19] The Crown concedes that at no time in the statement did the witness say such specific words, and accordingly was a misstatement by Justice Minard. However, the Crown argues that this is a matter of detail as opposed to substance.

[20] This court agrees with the Crown’s characterization of Justice Minard’s ruling on the voir dire. Justice Minard accurately captured the substance of John’s out-of-court statement, and thus did not misapprehend the evidence. Any misapprehension about John’s specific words goes to detail, and therefore does not provide a ground for appeal under the R. v. Lohrer[^2] framework.

[21] The appellant argued that Justice Minard’s inaccurate phrasing follows the same path taken by Crown counsel in his questioning of John and in his submissions to the court, which was to misstate that John’s sentence included not just the word “hitting”, but “hitting his mom”.

[22] Reviewing the statement in its entirety, there can be no reasonable doubt that John described an event where he witnessed his father hit his mother on the arm with a purse. Defence counsel argued that Justice Minard’s use of the phrase “he specifically says that he came downstairs and saw his father striking his mother with the purse” means that the trial judge mistook the substance of the evidence by virtue of drawing a dangerous inference, which became the basis for the court’s verdict. Defence counsel argued that the words “I saw my dad hitting” are ambiguous because they could have referred to his father hitting a wall, a counter, or any object, and not necessarily the complainant. But Justice Minard did not draw the inference out of thin air; as he said on his ruling on the voir dire, the videotape in essence suggests that John was an eyewitness to an assault.

[23] This court entirely agrees with that assessment. As earlier stated, the questioning by the detective, and John’s responses, leave no reasonable doubt that he was describing an incident in which he was an eyewitness to his father hitting his mother with a purse. Taking the statement as a whole, John’s evidence raises no reasonable doubt as to the existence of the elements of the offence of assault. Further, based on John’s entire evidence, it was reasonable for the court to conclude that his evidence that he saw “nothing”, and had been told of the events by his mother after the fact, should be rejected in favour of a statement: (i) given in the first person; (ii) responding to a question to describe what he “saw” and what he “knows”; (iii) given in close proximity to the events; (iv) provided to a person in authority; (v) in the face of a lack of motive to fabricate; (vi) in which some detail is provided.

[24] In the result, having found no error in the substance of the trial judge’s evaluation of John’s evidence on the voir dire, there was no error in having relied upon it to reach the ultimate verdict.

[25] That being the case, I also find no error in the trial judge placing some weight on the absence of any evidence that the appellant apologized or asked whether the complainant was alright. As earlier stated, in accepting John’s out-of-court statement for the truth of its contents, there was a basis for determining that John saw his father in the kitchen eating food after the event. There was also no evidence from the complainant that the appellant had asked about her condition or offered an apology. Accordingly, there was no error in the trial judge’s evaluation of the post-offence conduct.

[26] The appellant’s counsel also argued that the trial judge should have revisited his reliability assessment after the complainant testified to the effect that she told her son what had happened, and testified that he was upstairs sleeping during the key events.

[27] While the trial judge’s Reasons do not explicitly reject this evidence as lacking credibility, his acceptance of John’s statement, which contradicts the complainant’s evidence regarding his whereabouts, implies as much. It also implies that he rejected the complainant’s evidence that she told John about the events after the fact. He clearly found the complainant’s evidence to be lacking in trustworthiness, as he rejected her evidence that the purse may have been tossed at her by accident, such evidence being described by the appellant’s counsel in his factum as “a fairly tortured exegesis of the meaning of the word ‘accident’ ”.

[28] Justice Minard acknowledged that the complainant’s evidence on the issue of accident was confusing, and it was open to him to reject it. Deference must be shown to the trial judge’s evaluation of the evidence, as he was in the best position to accept some, none or all of a witnesses’ testimony. The transcript of proceedings shows no misapprehension of the complainant’s evidence.

[29] For the foregoing reasons, the appeal is dismissed.

Healey J.

Released: September 16, 2015

[^1]: R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257.

[^2]: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.