R. v. Thyagarajah, 2016 ONSC 633
CITATION: R. v. Thyagarajah, 2016 ONSC 633
COURT FILE NO.: 85/14
DATE: 20160126
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty The Queen v. Varathrajah Thyagarajah
BEFORE: K.L. Campbell J.
COUNSEL: Daniel Guttman, for the Crown, respondent
Robert W. Lockhart, for the accused, appellant
HEARD: December 14, 2015
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of any complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.
REASONS FOR DECISION
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Varatharjah Thyagarajah, was tried and convicted by the Honourable Madam Justice M. Wong of the Ontario Court of Justice on a charge of sexual assault.
[2] The offence was alleged to have taken place on the night of April 7, 2010 in a small basement washroom at the “Cow and Pickle” Restaurant, located near the intersection of Parliament Street and Dundas Street East in Toronto. The appellant and the complainant were strangers to each other, but were both present in the restaurant that night. The complainant had been in the restaurant for a number of hours, and had been served some food and beer. She went downstairs to use the washroom shortly before 11:00 p.m. The appellant entered the restaurant at approximately 10:30 p.m. He was highly intoxicated. He wanted to order some food, and when he was told that the kitchen was closed, he became belligerent and started screaming at the restaurant owner, Elizabeth Chan, and refused to leave.
[3] According to the complainant’s evidence, after she used the toilet in the women’s restroom, and was doing up her pants, her legs felt weak and she collapsed to the floor on her knees. She could not pull herself back up into a standing position. She explained that she suffered from osteoarthritis in both knees and was still recovering from recent surgery on them. She heard someone coming down the stairs and called out for assistance. The appellant answered her calls, but instead of helping her to her feet, he sexually assaulted her.
[4] According to the complainant, the accused grabbed her by the lapels of her jacket but could not get her standing. The appellant then began kissing her and licking her face. She kept turning her face away and trying to get out of his grip. He then lifted her shirt and began touching her breasts. Then he pulled down her pants and touched the outside of her vagina with his finger. He told her that he “wanted it” and kept repeating that he wanted her to come home with him. The complainant kept saying “no” and telling him to “stop” and leave her alone. The appellant repeated that he wanted to touch her and take her home with him. She struggled with him for about 10-15 minutes. She tried to prevent him from touching her, but she could not. She tried to hit him with her hands, but that did nothing as she did not have much force in her blows. She told him to “fuck off” and she called him a “bastard.” When the owner of the restaurant yelled downstairs, the appellant let go of her, and she fell back onto the floor on her knees. The appellant then returned upstairs.
[5] When the appellant came upstairs he briefly sat down on a sofa, but then wanted to go back downstairs. Mrs. Chan, who wanted the appellant to leave the restaurant, tried to block his way, but he briefly went downstairs again. Mrs. Chan then threatened to call the police. When she placed a “911” call, the appellant quickly left the restaurant.
[6] When Mrs. Chan went downstairs to the washroom, the complainant was lying on the washroom floor, with her pants below her knees. She was unable to sit up or stand. The complainant was crying and appeared to be in pain. She said one word to Mrs. Chan: “rape.” The complainant later explained to the police that, by that word, she meant that she had been “physically used” in that her clothes were thrown off and she was touched, kissed and licked without her consent.
[7] The police arrived at the restaurant at approximately 11:24 p.m. When they went to the washroom downstairs, the complainant was crying and appeared to be in pain. She was on her knees holding onto a chair by the washroom entrance. She was “half-naked” with her pants still “half-way to her knees.” She complained that she had been sexually assaulted. She was then taken to the hospital.
[8] At trial, the appellant testified that after he had finished using the men’s washroom, he heard the complainant in the women’s washroom saying “help me.” According to the accused, her pants were already half-down and she was on the floor near a toilet. He denied taking down her pants, testifying that he found her in that state of undress. He assumed that she had fallen down. He lifted her up by putting his arms underneath her armpits, with her arms around his neck. She was heavy and struggled to regain her feet. The appellant testified that she was drunk and asked him to “take her out.” The accused testified that once she was standing again, the complainant kissed him on both cheeks. He kissed her back, more than once. He thought that she liked him. He thought that he kissed her on her breast, and conceded that he may have touched her vaginal area, but he could not remember the details of the incident as he was drunk. He did not remember the complainant telling him to stop, pushing him away, or removing her arms from around his neck. If she had told him to stop or leave he would have understood. When the restaurant owner yelled for him to leave the restaurant, he put the complainant back on the floor and left, without telling anyone about her plight on the washroom floor.
[9] When the complainant was taken to the hospital, she was examined and a sexual assault kit was completed. Within a few hours she provided a detailed videotaped interview statement to the police. In late June of 2010, swab tests taken from the complainant’s body as part of the sexual assault kit revealed, essentially, that the appellant’s DNA was found on the complainant’s face, breasts and external genitalia. The appellant was arrested on July 1, 2010.
[10] The trial proceedings were lengthy. They began on May 31, 2013. On May 6, 2014, nearly a year later, the trial judge, in lengthy and detailed written reasons for judgment, carefully analyzed the conflicting evidence, but ultimately accepted the evidence of the complainant. She rejected as “unbelievable” and “unreliable” the “entirely self-serving” testimony of the appellant, and was satisfied beyond a reasonable doubt as to the guilt of the appellant. Subsequently, on July 7, 2014, over four years after his arrest, the appellant was sentenced to a global term of 12 months imprisonment, probation for a term of three years, and a number of ancillary orders.
B. The Grounds of Appeal
[11] The appellant appeals against his conviction. Defence counsel advanced three main grounds of appeal. First, the appellant argued that the trial judge erred in concluding that his constitutional right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, was not violated in the circumstances of this case. Second, the appellant argued that the trial judge erred in admitting the videotaped interview statement of the complainant, following her death, as it was not sufficiently reliable to merit its substantive admissibility. Third, the appellant argued that the trial judge misapprehended an important aspect of the complainant’s evidence. For the following reasons, I cannot accept any of these arguments. The appeal must be dismissed.
C. Analysis
1. [Section 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
a. Introduction
[12] The total period of delay in issue in this case between the arrest of the appellant when he was first charged with this offence (July 1, 2010), and the conclusion of the trial when he was sentenced (July 7, 2014), is just over four years. This total period of time is certainly sufficiently lengthy to merit an inquiry as to the reasons for delay under s. 11(b) of the Charter. At trial, the appellant brought two applications to stay the proceedings. The first was heard on October 23, 2013. At that point, the total accumulated delay was approaching three years and four months. The second application was heard on April 17, 2014. At that point, the total accumulated delay was three years, 9½ months. At the conclusion of argument on each of the applications, the trial judge delivered detailed oral reasons dismissing them. The appellant argued that the trial judge erred in her analysis of some of the individual periods of delay and in reaching her conclusions that there was no violation of s. 11(b) of the Charter in the circumstances of this case.
b. [Section 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) – The Analytical Framework
[13] The legal analysis that is required on applications under s. 11(b) of the Charter is well-established. Where an accused contends that he or she has not been tried within a reasonable time, the accused must establish the alleged violation of s. 11(b) of the Charter on the balance of probabilities. Of course, whether any delay is unreasonable is not simply a function of the passage of time, but includes a careful consideration of several factors. According to the leading decision in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, the following factors must all be taken into account in determining whether or not there has been a violation of s. 11(b) of the Charter:
(1) The length of the delay;
(2) Any waiver of time periods by the accused;
(3) The reasons for the delay, including: (a) the inherent time requirements of the case; (b) the conduct of the accused or delays attributable to the accused; (c) the conduct of the Crown or delays attributable to the Crown; (d) systemic or institutional delays; (e) any other reasons for delay; and
(4) Any prejudice to the accused.
[14] Once all of these relevant factors have been considered, the final stage of the analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual background of the entire case, and an understanding of the total length of the delay and the various causes of that delay. Essentially, the court must balance the societal interest in seeing that persons charged with offences are brought to trial, against the interest of both society and the accused in the prompt adjudication of criminal cases. Before staying the charges, the court must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. See R. v. Morin, at pp. 788, 809-810; R. v. Duhamel, 2012 ONSC 6448, [2012] O.J. No. 5392, at paras. 8-9; R. v. Pakjou, 2013 ONSC 1419, [2013] O.J. No. 1050, at paras. 105-114; R. v. Williamson, 2014 ONCA 598, 314 C.C.C. (3d) 156, at paras. 58-68; R. v. Boateng, 2015 ONCA 857, [2015] O.J. No. 6449, at para. 21; R. v. Ponnuthurai, 2015 ONSC 8104, [2015] O.J. No. 6901, at paras. 12-13.
c. The Scope of Review on Appeal
[15] The law is also clear regarding the proper scope of appellate review of trial court decisions on applications under s. 11(b) of the Charter. Trial court assessments of the individual periods of delay in any given case, including how the trial judge characterized them under the recognized categories, as well as the ultimate decision of the trial judge as to whether the delay is unreasonable, are reviewed on a standard of correctness. However, any findings of fact that are made by the trial judge during the course of his or her s. 11(b) Charter analysis are only reviewable on the standard of “palpable and overriding error.” See R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72, leave denied, [2010] S.C.R. xv; R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 18; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19; R. v. Cranston, 2008 ONCA 751, 244 O.A.C. 328, at para. 35, leave denied, [2009] S.C.C.A. No. 326; R. v. N.N.M. (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436, [2006] O.J. No. 1802 (C.A.), at paras. 5-6; R. v. Nguyen, 2013 ONCA 169, 303 O.A.C. 29, at para. 47; R. v. Mahmood, 2012 ONSC 6290, 271 C.R.R. (2d) 94, at paras. 11-12; R. v. Konstantakos, 2014 ONCA 21, 298 C.R.R. (2d) 310, at para. 5; R. v. Williamson, at para. 29; R. v. D.M., 2015 ONSC 4305, [2015] O.J. No. 3500, at paras. 10-12; R. v. Ponnuthurai, at para. 14.
d. The Factual Findings and Analysis of the Trial Judge
[16] In her ruling on October 23, 2013, dismissing the appellant’s first application to stay the proceedings, the trial judge drew the following conclusions:
(1) The First Stage of the Proceedings: According to the trial judge, during the initial stage of the proceedings, there was over 4½ months of neutral “intake” time to permit the Crown to provide disclosure, and to permit the appellant to arrange for bail, retain counsel and review the disclosure. In addition, during this first stage of the proceedings, defence counsel expressly or impliedly waived a period of approximately 2½ months. Further delays were occasioned, at the request of the appellant, when the case appeared to be “on the resolution track.” Further, an additional 1½ months was consumed with the necessary judicial pre-trial meeting, a neutral inherent time requirement in the case. None of these conclusions by the trial judge are challenged on appeal. This first stage of the proceedings accounts for approximately the first year of delay (July 1, 2010 to June 30, 2011).
(2) The First Trial Date: On June 30, 2011, the trial was scheduled to start on April 25, 2012, and span two days. Defence counsel subsequently acknowledged that he could not have been ready for this trial until October 30, 2011. Accordingly, the trial judge concluded that the first four months (June 30 to October 30, 2011) of that ten-month time period should be allotted to the preparation time that was inherent in the case. Further, on April 25, 2012, defence counsel sought an adjournment of the trial as he had not yet properly launched his application, pursuant to s. 276(1) of the Criminal Code, R.S.C. 1985, c. C-46, for leave to cross-examine the complainant in relation to other sexual activity. Initially, the Crown objected to the adjournment, but when some confusion arose as to whether the Crown was proceeding by indictment or summary conviction, the Crown resiled from this position, and the trial was adjourned. The trial judge concluded that the adjournment was, in fact, caused by defence counsel being unprepared for trial. However, as a matter of fairness, the trial judge attributed two more months of the time prior to the scheduled trial date of April 25, 2012, to both of the parties as neutral preparation time. In the result, the trial judge concluded that the remaining four months between the set date and the scheduled trial date was institutional delay.
(3) The Second Trial Date: Following another judicial pre-trial, wherein the parties estimated that six days (not two days) would be necessary for the trial, the trial was scheduled to commence on January 25, 2013. Defence counsel acknowledged that he would not have been ready for trial for another two months given his own calendar scheduling and the outstanding need to perfect his application under s. 276(1) of the Criminal Code. Accordingly, the trial judge attributed another two months to trial preparation time, and concluded that approximately seven months of this period of delay was institutional.
(4) The Third Trial Date: The January/February 2013 trial dates were lost when defence counsel suffered a personal injury and required surgery and a recuperative period. At trial, defence counsel conceded that, given that he sought this adjournment, the time period between the scheduled trial date of January 25, 2013, and the next scheduled trial date of May 27, 2013, was properly attributed to the appellant. Accordingly, the trial judge attributed that four month period of delay to the appellant.
(5) The Trial Started But Did Not Finish: By late May of 2013 the complainant was in a long-term health care facility with a serious, deteriorating medical condition called multiple system atrophy. She was unable to speak more than a word at a time. Anticipating that she might never be able to testify, the Crown indicated that it was bringing a “Khelawon application” to have her videotaped interview statement admitted for the truth of its contents. In the result, the matter was adjourned, for a period of five days, to permit the parties to prepare for these changed circumstances, and to allow the trial judge to attend a funeral. The trial judge characterized this one week delay as “neutral” as the failing medical condition of the complainant was the type of “unexpected” issue that occasionally arises “in the dynamics of a trial.” The trial finally commenced on May 31, 2013, and a number of witnesses testified. However, the trial could not be concluded within the allotted time period. At that point, defence counsel indicated that he would be bringing an application under s. 11(b) of the Charter to stay the proceedings.
(6) Delay Application and Resumption of the Trial Proceedings: While a number of earlier court dates were available, starting on July 9, 2013, and were offered to the parties, defence counsel was not available to continue this case until early September. In the result, the s. 11(b) Charter application was scheduled for September 4, 2013, and trial continuation dates (three more days) were scheduled to resume starting on October 28, 2013. When defence counsel did not properly perfect his application under s. 11(b) of the Charter in a timely manner, that hearing was re-scheduled for October 23, 2013. The trial judge concluded that the nearly six week period, between May 31 and July 9, 2013, was institutional delay, and the remaining period of nearly two months, between early September and late October, 2013, was “neutral” time given the unavailability of defence counsel, and his tardy perfection of his s. 11(b) Charter application.
(7) The Prejudice to the Appellant: The trial judge considered the evidence of the appellant on the issue of prejudice and concluded that he suffered no prejudice to his liberty interests and “very modest” if any actual prejudice to his security of the person interests, in that, as time progressed, he increasingly worried about the outcome of the trial proceedings. At the same time, the trial judge noted that defence counsel conceded that the appellant was “not in a hurry” for this case to come to trial as he knew that, if convicted, he might face deportation proceedings. The trial judge ultimately concluded, in an addendum to her intial ruling, that the accused had suffered actual, significant prejudice to his fair trial interests in that the complainant had died before she could testify, thereby depriving the appellant of an opportunity to cross-examine her.
(8) Balancing Competing Interests: In her final analysis, the trial judge concluded: (1) that while there was a total of approximately 12½ months of institutional delay, the prescribed administrative guideline was not a limitation period; (2) that the allegation against the appellant, that he sexually assaulted a physically disabled woman not previously known to him, was a very serious allegation, and was “the kind of case that requires the court to determine the outcome on its merits;” (3) that this case was “very far” from being a “straight forward” and simple one, but rather was a case that involved the complexities of forensic DNA evidence and a number of civilian and police witnesses; (4) the Crown was “not responsible for any significant period of delay in this case; and (5) the appellant never sought to move the case ahead any faster, but rather the case had “dragged on” in large part due to the “mis-steps of the defence” and “acquiescence” in adjournments to accommodate the appellant. In the result, the trial judge concluded that she was not satisfied that the applicant had satisfied his burden of establishing the alleged violation of s. 11(b) of the Charter on a balance of probabilities, even in light of the prejudice that the accused had suffered.
[17] In her subsequent ruling on April 17, 2014, dismissing the appellant’s second application to stay the proceedings, the trial judge considered the reasonableness of the additional 6½ month time period between her earlier ruling (October 23, 2013) and the anticipated conclusion of the trial (May 6, 2014), and drew the following further conclusions:
(1) The October Trial Proceedings: The trial judge noted that the trial proceedings continued on October 26, 27, and 30, 2013, with further Crown witnesses, including the nurse who completed the sexual assault kit in relation to the complainant, a toxicologist, and a DNA scientist to describe where the appellant’s DNA was found on the complainant’s body. Further, the court heard submissions and delivered a ruling on the Crown’s Khelawon application, and there was a voir dire conducted in relation to the admissibility of a statement allegedly made by the appellant. This voir dire could not be completed, however, as defence counsel needed more time to consider an application under s. 10(b) of the Charter, and prepare for his cross-examination. In the result, the trial was adjourned to December 13, 2013.
(2) The December Trial Proceedings – The s. 10(b) Charter Application: The trial judge noted that the trial proceedings continued on December 13 and 17, 2013, notwithstanding the late filing of the appellant’s materials in relation to his s. 10(b) Charter application, and the police witnesses on that issue concluded their evidence. The appellant began to testify on the voir dire but, when he complained that he was not feeling well, the matter was adjourned to February 11, 2014.
(3) The February Trial Proceedings: The trial judge noted that on February 11, 2014, the Crown concluded its cross-examination of the appellant and the parties began their arguments in relation to the admissibility of the appellant’s statement. Proceedings concluded before lunch, however, as defence counsel was not prepared to make any argument in relation to the potential application of s. 24(2) of the Charter. Those arguments were made on February 19, 2014. The following day, the trial judge delivered her ruling on the admissibility of the statement. See R. v. Thyagarajah, 2014 ONCJ 91, [2014] O.J. No. 950. The Crown then closed its case. The appellant then began his testimony on the trial proper, and cross-examination of the appellant concluded on February 21, 2013.
(4) The Defence Adjournment Request: The trial judge observed that at the conclusion of the proceedings on February 21, 2013, the matter was adjourned, at the appellant’s request for further proceedings on April 24-25, and May 6, 2014, to permit the appellant to call two further defence witnesses (Mrs. Chan and her son), and for final arguments. Earlier in February, the Crown had indicated that the Chans, who had been subpoenaed at the behest of the Crown, had gone to China and were not returning until mid-April, 2014. The Crown had offered to agree that their written statements be admitted as evidence on the trial, but defence counsel would not agree. In the result, the Crown did not seek an adjournment to secure their evidence, but rather simply closed its case without relying upon their evidence. However, the appellant requested an adjournment so that defence counsel could call their evidence. The trial judge noted that, in granting this adjournment request, the resulting delay would not be attributed to the Crown. The trial judge described this need for an adjournment as something “unexpected.” In her reasons, the trial judge rejected the argument by defence counsel that this period of delay ought to be considered as “Crown delay.”
(5) Incorrect Time Estimate of Trial Time: The trial judge concluded that the further delay in this case was caused by the “gross underestimation” of the time required for the trial of this matter. In this regard, the trial judge noted that, originally, in May of 2013, five days were set aside for trial, but that, by May 6, 2014, 15 court days would be required for the trial of this matter. The trial judge noted that, when this happens, some accommodations have to be made in relation to scheduling for the court, counsel and witnesses.
(6) Increasing Complexity of the Case: The trial judge commented that, over time, “the complexity of the trial [had] grown.” Further, the trial judge stated that she “strongly disagree[d] with defence counsel’s characterization of this trial as fairly straightforward and uncomplicated.” In this regard, the trial judge noted: (1) the complainant eventually died and the Crown sought to tender her hearsay evidence through her video recorded interview statement by means of a Khelawon application; (2) the admissibility of the appellant’s statement to the police became an issue, both in relation to the voluntariness of the statement and its admissibility under ss. 10(b) and 24(2) of the Charter; and (3) there had been two applications under s. 11(b) of the Charter. The trial judge also commented that, each court day, the trial was “moved forward, albeit slowly,” and was filled with witnesses, arguments and rulings, as happens “in a busy, complex trial.”
(7) Disorganized and Unprepared Defence Counsel: The trial judge concluded that another reason for the delay in this case was defence counsel’s “continued disorganization.” In this regard, the trial judge noted that defence counsel had caused delays by not filing his materials on time in relation to his applications under ss. 10(b) and 11(b) of the Charter, and his application pursuant to s. 276(1) of the Criminal Code. The trial judge also noted that defence counsel was unable to undertake or continue with cross-examinations, and advance legal arguments in a timely way, due to his lack of preparation.[^1]
(8) No Further Institutional or Crown Delay: The trial judge concluded that there had been no further period of institutional delay in the period between October 23, 2013 and May 6, 2014, nor was there any further delay caused by the Crown.
(9) Prejudice to the Appellant: The trial judge accepted, based upon the evidence of the appellant’s family physician, that the appellant is an alcoholic, and suffers from post-traumatic stress disorder and a generalized anxiety disorder as a result of his life experiences in Sri Lanka. The appellant’s family physician attributed some of his alleged systems of dizziness and unconsciousness to his alcohol abuse. The trial judge did accept, however, that this “ongoing case” caused “added stress and anxiety” to the appellant’s life. The trial judge also accepted that the appellant had “suffered both inherent and actual prejudice in the delay of his trial coming to a conclusion.”
(10) Balancing Competing Interests: In her ultimate analysis of this case, the trial judge sought to consider and balance: (1) the community interest in seeing an accused charged with serious offences, such as the alleged sexual assault of a physically disabled woman by a total stranger, tried on the merits of the case; against (2) the lengthy total period of delay in this case, which was “very significant.” In the result, the trial judge concluded that, after “balancing all the factors,” there had been no violation of the appellant’s right to be tried within a reasonable time according to s. 11(b) of the Charter.
e. Conclusions
[18] I have outlined, at considerable length, the analysis and factual conclusions that were reached by the trial judge in this case because I agree with them. After considering the entire trial record in this case, and the submissions of counsel on appeal, I can discern no proper basis or justification to interfere with any of the conclusions of the trial judge. In my view, the trial judge properly characterized and attributed the individual periods of delay, reached reasonable factual conclusions that were well-supported by the trial record, and ultimately reached the correct conclusion that there was no established violation of s. 11(b) of the Charter in the circumstances of the present case.
[19] While the 12½ month period of institutional or systemic delay in this case is somewhat beyond the judicially established guidelines for permissible systemic delay in the Ontario Court of Justice of eight to ten months, as the trial judge quite correctly observed, such guidelines are not fixed and inflexible limitation periods or arbitrary ceilings on the time within which an accused must be brought to trial. Accordingly, even in cases such as the present one, where the period of systemic delay exceeds the recognized guidelines, this does not automatically result in a violation of s. 11(b) of the Charter and a staying of the criminal charges against the accused. However, an unduly lengthy period of systemic delay will certainly weigh against the Crown in the overall assessment of the reasonableness of the total delay. The trial judge properly considered this issue. See R. v. Morin, at pp. 794-800; R. v. Chatwell (1998), 1998 CanLII 3560 (ON CA), 38 O.R. (3d) 32, 122 C.C.C. (3d) 162, at para. 11; R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453, 27 C.R. (6th) 142 (Ont.C.A.), at para. 13(d); R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont.C.A.), at paras. 19, 27-30, 51-52; R. v. R.(T.) (2005), 2005 CanLII 18709 (ON CA), 75 O.R. (3d) 645, 197 C.C.C. (3d) 14 (C.A.), at para. 34; R. v. Vitanza, 2007 ONCA 753, [2007] O.J. No. 4257, at para. 4; R. v. Ignagni, 2013 ONSC 5030, [2013] O.J. No. 3531, at paras. 21, 64; R. v. Barkho, 2016 ONCA 62, at para. 12.
[20] Further, in balancing the individual and state interests that s. 11(b) of the Charter is designed to protect, against the entire factual background of the case and the various factors that resulted in the delays in this case, the trial judge properly noted that the sexual offence committed by the appellant was a very serious one, in which there was a great societal interest in having a trial on the merits. See R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 192 O.A.C. 320, 191 C.C.C. (3d) 347 (C.A.), at para. 25; R. v. Hussey, 2008 ONCA 86, 168 C.R.R. (2d) 252, at paras. 9-11; R. v. Williamson, at paras. 58-68; R. v. D.M., at para. 13(8). On the other hand, the trial judge also fairly and accurately characterized and balanced the prejudice suffered by the accused.
[21] There is no gainsaying the fact that the total delay in this case of over four years is very lengthy, especially given that all of the proceedings took place in the Ontario Court of Justice. However, after reviewing the entire proceedings in this case, from start to finish, and balancing anew all of the relevant interests and considerations, I am satisfied that there was no violation of the appellant’s rights under s. 11(b) of the Charter, and that the trial judge reached the correct conclusion in this regard.
2. The Admissibility of the Complainant’s Videotaped Interview Statement
a. Introduction
[22] The alleged sexual assault took place at approximately 11:00 p.m. on April 7, 2010. The police arrived at the restaurant at 11:24 p.m. In light of the complainant’s physical condition at that time, their first priority was to get her to the hospital. She arrived at the hospital at 12:31 a.m. and, thereafter, was examined and treated. At 4:07 a.m, the complainant left the hospital with the police, arriving at Toronto Police Service (TPS) headquarters at 4:31 a.m. By 4:52 a.m. the complainant was being interviewed, on videotape, in relation to the alleged offence. The interview concluded at 5:58 a.m. During the course of this 66 minute interview, the complainant detailed what happened to her earlier that night in the restaurant.
[23] Tragically, before she could testify at the trial of this matter, the complainant died. At the time of the alleged offence, the complainant was 43 years old and physically disabled. As already noted, she suffered from multiple system atrophy. Her disability affected her speech and her overall demeanour. By September of 2012, the complainant was using a wheelchair, and her ability to speak had deteriorated. By January of 2013, the complainant was in a long-term care facility and could only utter one word at a time. By May of 2013, the complainant was hospitalized with pneumonia, and it was feared that she would never recover. Before the trial proceedings resumed in October of 2013, the complainant died.
[24] Following her death, the Crown tendered the complainant’s 66 minute videotaped interview for the truth of its contents under the principled exception to the rule against hearsay. The parties agreed that the admission of the videotaped interview was reasonably necessary given the death of the complainant, but disagreed as to whether the complainant’s interview statement met the threshold reliability requirement justifying its substantive admissibility. In a detailed written ruling released on October 30, 2013, the trial judge concluded that the evidence also met the criteria of threshold reliability and was substantively admissible. See R. v. Thyagarajah, 2013 ONCJ 761, [2013] O.J. No. 6217. The appellant contends that the trial judge erred in reaching this conclusion.
b. The Standard of Review on Appeal
[25] The admissibility of hearsay evidence is ultimately a question of law to be determined by the trial judge and, therefore, is subject to appellate review on the standard of correctness. At the same time, however, a trial judge is well positioned to assess and determine the extent to which any of the traditional hearsay dangers are of concern in any particular case, and whether they can be sufficiently ameliorated. Accordingly, provided that a trial judge is correctly informed as to the applicable legal principles, addresses the relevant factors, does not significantly misapprehend the evidence relevant to those factors, and makes a reasonable assessment of those factors, an appellate court should defer to the trial judge’s weighing of those factors. See R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 81 and 132; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 101; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 61; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 112; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 44; R. v. Nataucappo, 2015 SKCA 28, 322 C.C.C. (3d) 69, at paras. 28-29; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 77. As the Court of Appeal for Ontario stated in R. v. S. (S.), 2008 ONCA 140, 232 C.C.C. (3d) 158, at paras. 29-30:
The admissibility of a hearsay statement is ultimately a question of law and, therefore, reviewable on a correctness standard. Part of that inquiry, however, requires the trial judge to weight various factors, some of which may point towards admissibility and others which may point against admissibility. Trial judges cannot consult rules akin to mathematical formulas to tell them how much weight to give to each of the factors. The assessment is case-specific. Different judges will reasonably assign more or less weight to each of the particular factors in any given case.
As long as the trial judge 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 made a reasonable assessment of the weight to be assigned to those factors, this court should not redo the weighing process, but should defer to the trial judge's weighing of those factors.
[emphasis added]
c. The Ruling by the Trial Judge
[26] In ruling that the complainant’s videotaped statement was sufficiently reliable to justify its substantive admissibility, the trial judge considered a number of relevant and important issues, and drew all of the following conclusions:
(1) The Video Record of the Statement: The trial judge noted that the police interviewed the complainant in a room with good lighting, and the quality of both the sound and image of the complainant during the interview was “excellent,” in that it “revealed the tone of her voice and the facial expressions.” Moreover, the trial judge concluded that the videotape was “a complete and reliable record” of the taking of the interview and the circumstances in which it took place.
(2) Voluntary Statement – No Threats or Promises by the Police: The trial judge stated that she was satisfied that no police officer who dealt with the complainant that night “threatened her, promised her or intimidated her in anyway.”
(3) Answered Questions Freely, Naturally and Thoughtfully: The trial judge concluded that the complainant answered the interview questions “freely and naturally,” and her voice and demeanour during the interview “reflect that she was thoughtful about her answers.” She occasionally corrected herself to be more accurate. The trial judge concluded that the questions posed by the experienced police officers were not “leading,” but rather the interview was “thorough” and conducted “very fairly.”
(4) Interview Was Reasonably Contemporaneous With Offence: Acknowledging that close to five hours passed between the alleged sexual assault and the interview, the trial judge concluded that the complainant’s interview statement was made “reasonably contemporaneous” to the events in question, and that there was no evidence the complainant’s “memory was adversely affected by the lapse of time.” In reaching this conclusion, the trial judge relied upon R. v. M. (J.), 2010 ONCA 117, 251 C.C.C. (3d) 325. The trial judge also noted that the reasons for the delay in taking the statement (i.e. taking the complainant to the hospital) were “wholly justified.”
(5) No Motive to Fabricate: The trial judge concluded that the complainant had no motive to fabricate her evidence, or get the appellant into trouble. She did not know the appellant. He was “an absolute stranger to her.” She did not know where he lived, or what he did for a living. Further, nowhere in her interview statement did the complainant “try to exaggerate the incident or her injuries; nor does she come across as angry or vindictive.” The trial judge also concluded that there was no evidence that the complainant stood to benefit by making a false statement, or was motivated by some other person who may have had a grievance against the appellant.
(6) Complainant’s Memory Not Compromised: The trial judge noted that while the complainant had earlier consumed as many as five beers, and had taken a “painkiller,” and had been displaying some indicia of impairment, including speaking slowly and in a manner consistent with someone on drugs, the trial judge concluded that she was not “drunk” and “her memory and ability to recall and describe” the incident to the police was not compromised. The trial judge noted that, during the interview, the complainant “appeared and sounded alert, coherent, and her answers were responsive to the questions” posed.
(7) Interview Taken Seriously by the Complainant: The trial judge observed that in the police interview, the complainant appeared to be “embarrassed” in talking about what happened to her, and discussing her physical disability. She had to “reveal very intimate details” to the police officers (as well as the nurse at the hospital). The trial judge concluded that discussing such matters openly would have been “taken seriously” by any “reasonable person including [the complainant].”
(8) Corroborative Evidence: The trial judge found it “extremely significant” that the appellant’s DNA was found on the complainant’s face, and breasts, as this was “consistent with her statement that the accused kissed and fondled her.” At the time of the ruling, of course, the accused had not yet provided his testimony (which ultimately was also consistent with the DNA evidence). The trial judge also concluded that the complainant’s interview statement was consistent with certain aspects of the statements of Elizabeth Chan and her son.
(9) Other Safeguards of Reliability: The trial judge concluded that there were “other safeguards” that supported the admissibility of the complainant’s interview statement. More particularly, after undergoing physical examination and the completion of a sexual assault kit at the hospital, the complainant was transported to police headquarters, where she was interviewed, on videotape, by two police detectives. As the trial judge put it, there was “no doubt” that the complainant “knew that what she was telling the police was very important” and “knew that police would be trying to find the suspect” based upon the information that she provided to them. The trial judge also noted that the complainant’s physical description of her assailant accurately described the appellant. The trial judge also concluded that even “in the absence of a formal oath or caution” she was “satisfied there were appropriate safeguards” surrounding the making of the interview statement so as to ensure its reliability.
(10) One Significant Inconsistency – No Prejudice to the Appellant: The trial judge noted the “significant inconsistency” in what the complainant first told the police in response to questions (i.e. the assailant had possibly penetrated her sexually; that no condom had been used, and she was not sure if he ejaculated), and what the complainant later said in her videotaped interview (i.e. the assailant kissed her and licked her face, and touched her breasts and vagina). However, the trial judge concluded that the appellant was not prejudiced in not being able to cross-examine the complainant on this topic, as the inconsistency was evident from the notes and testimony of the police officers, and could be assessed in considering the “ultimate reliability” of the complainant’s evidence.
(11) Sufficient Circumstantial Guarantees of Trustworthiness: Finally, the trial judge concluded that she was satisfied that the circumstances under which the complainant gave her videotaped interview statement to police “were such as to guarantee its reliability, irrespective of the unavailability of cross-examination.” In reaching this conclusion, the trial judge noted that the term “guarantee,” as used in the phrase “circumstantial guarantee of trustworthiness,” does “not require that reliability be established with absolute certainty,” but rather only suggests that “the circumstances are not such as to give rise to the apprehensions traditionally associated with hearsay evidence, even where cross-examination is not possible. In reaching this conclusion, the trial judge cited R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 257, for the proposition that “where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.” The trial judge stated that she was satisfied that she could “properly evaluate the evidence in this case.”
d. Conclusions
[27] Again, I have outlined, at considerable length, the analysis and factual conclusions of the trial judge in relation to this issue because I agree with them.
[28] The trial judge correctly articulated the applicable governing legal principles impacting upon the threshold reliability of the tendered evidence.
[29] The trial judge also fully addressed the relevant factors touching upon the reliability of the complainant’s police interview statement. More particularly, the trial judge fully and carefully considered such matters as: (1) the quality of the videotape recording of the interview; (2) the spontaneity of the complainant; (3) the timing of the interview and whether it was reasonably contemporaneous with the offence; (4) whether the complainant had any motive to fabricate her interview statement to the police; (5) the mental state of the complainant when she made her interview statement; (6) whether the statement was against the complainant’s interest; (7) the existence of supporting or corroborative evidence; and (8) the testimony of other witnesses that are either consistent or inconsistent with the complainant’s interview statement.
[30] These are the important factors that the trial judge was obliged to consider based upon the governing jurisprudence. For example, see R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 792-793 (regarding the quality of the video recorded interview); R. v. Polimac, at para. 62 (regarding the spontaneity of the complainant’s statement); R. v. Nguyen, 2001 ABCA 98, 153 C.C.C. (3d) 495, at para. 44, and R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1, 182 C.C.C. (3d) 393 (C.A.), at paras. 77, 91, leave denied, [2004] S.C.C.A. No. 225 (regarding the timing of the interview and whether it was reasonably contemporaneous with the event); R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204, 169 C.C.C. (3d) 489 (C.A.), at para. 39, leave denied, [2003] 2 S.C.R. vii, and R. v. Blackman, at paras. 41-42 and 55 (regarding whether the complainant had any motive to fabricate her evidence against the accused); R. v. Smith, 2007 NSCA 19, 216 C.C.C. (3d) 490, at para. 178 (whether the statement was against the complainant’s interest); R. v. Khelawon, at paras. 93-100, and R. v. Little, 2007 ONCA 288, [2007] O.J. No. 1467, at para. 3 (regarding the existence of supporting or corroborative evidence).
[31] I note as well that the trial judge did not, in her assessment of these various considerations in her ruling, materially misapprehend any of the evidence relevant to any of those factors.
[32] Finally, having regard to the ultimate conclusion reached by the trial judge on the issue of threshold reliability, the trial judge made a perfectly reasonable assessment of those various factors. Indeed, while her decision to admit the evidence is entitled to deference on appeal, I would not interfere with the verdict on the basis of this ground of appeal even if deference was not called for because, in my view, the trial judge reached the correct conclusion in her analysis of those various factors.
[33] While the complainant was not available for cross-examination on the contents of her recorded interview statement to the police, in the circumstances of the present case, such cross-examination was likely to have added little, if anything, to the process of investigating and assessing the reliability of the complainant’s statement. See R. v. M.(J.), at para. 65. The circumstances surrounding the statement serve to remove any real concern about whether the statement is true or not.
3. The Trial Judge’s Misapprehension of the Evidence
a. Introduction
[34] Finally, the appellant argued that his conviction should be set aside as a result of an admitted misapprehension of the evidence by the trial judge, which she was legally unable to effectively correct in her subsequent “addendum” to her reasons for judgment. I agree that the trial judge misapprehended one aspect of the complainant’s evidence. I also agree that the “addendum” subsequently issued by the trial judge cannot properly be considered, on appeal, as repairing the original misapprehension of the evidence. Nevertheless, in my view, the original misapprehension of the evidence is insignificant in the circumstances and provides no justification for interfering with the verdict reached by the trial judge. Accordingly, I cannot give effect to this ground of appeal.
b. The Original Reasons for Judgment
[35] In her reasons for judgment at the conclusion of the case, the trial judge reviewed the evidence of the various statements the complainant made to others following the alleged sexual assault. Defence counsel had argued that the inconsistencies in these accounts of the alleged sexual assault undermined the credibility and reliability of the complainant’s evidence.
[36] First, the trial judge reviewed the evidence of the police officers and, in particular, the police notes indicating that the complainant said that the accused penetrated her vagina; had not used a condom; and did not ejaculate. Second, the trial judge reviewed the evidence of the registered nurse who dealt with the complainant at the hospital, including her evidence that the complainant told her that the accused had attempted to penetrate her vagina with his finger. Third, the trial judge reviewed the complainant’s videotaped interview statement, noting that the complainant had then indicated that the accused had “kissed and licked her face, fondled her breasts, and digitally touched and penetrated her vagina.” The trial judge had earlier noted that the complainant had indicated that the accused had “ran his finger on the outside of her vagina, digitally penetrating her and he continued kissing and licking her face.”
[37] After reviewing this evolution in the complainant’s evidence, the trial judge considered and rejected the submission of defence counsel that this evidence showed that the complainant had been lying in her earlier statements to the police, and only changed her evidence when she realized that DNA testing would be performed and her initial version of events would be discredited. The trial judge observed that while the first police officers on the scene were trained investigators, they were not assigned to take a detailed statement from the complainant, their notebook entries were not verbatim quotes from the complainant, and they were not recorded in language that would be used by most laypeople, or the complainant (given the way she spoke on the video recorded interview statement). Ultimately, the trial judge concluded that it would be inappropriate to reject the complainant’s evidence based on this discrepancy, especially given that the complainant was “consistent” and “reported the same version of events” to both the nurse and the officers conducting the video recorded interview. Further, the trial judge noted that the complainant’s statements to the nurse and the officers conducting the video recorded interview were also “consistent with the DNA results” that “established conclusively” that the DNA of the accused was found, inter alia, in her vaginal area. Accordingly, the trial judge concluded that the “discrepancy” between what the complainant first told the police officers and what she told others subsequently did not undermine the complainant’s credibility.
c. The Proceedings on the Sentencing Hearing – The Addendum
[38] Subsequently, on the date scheduled for the sentencing hearing, the Crown counsel noted that penetration would be an “aggravating feature” of the case, but to clarify the matter, the Crown noted that, in her videotaped interview statement, the following exchange took place between the complainant and the police officer:
Officer: Okay. And – what did he do exactly? Can you describe how he touched your vagina?
Complainant: Ah he put his finger.
Officer: What, what do you mean?
Complainant: He put in – put his finger in and, ram it up. Not inside but – on the outside.
Officer: On the outside?
Complainant: Yeah.
[39] Defence counsel indicated that he saw no need to bring the matter “forward” to address it, but thought that it would be adequate to raise it briefly before sentencing submissions. Defence counsel indicated that he agreed with the Crown that “there was no digital penetration” according to the complainant’s videotaped interview statement.
[40] After retiring briefly to consider the issue, the trial judge delivered a brief oral “addendum” to her original reasons for judgment in which she “corrected” her “factual finding” and addressed her “mis-statement of fact.” The trial judge indicated that she was satisfied that her finding “ought to have been that [the accused] touched [the complainant] on the outside of her vaginal area but that he did not digitally penetrate her.”
[41] Defence counsel then clarified his position that the “addendum” was only for the purpose of sentencing, and not for the purpose of correcting her original reasons for judgment.
d. Analysis and Conclusion
[42] While the trial judge was not functus officio at the time that she provided her “addendum” correcting her misapprehension of the evidence, her supplementary reasons addressing the issue were more in the nature of an after-the-fact justification, as opposed to a bona fide expression of the reasons that led her to reach her verdict. Accordingly, her “addendum” simply cannot properly be considered on this appeal. See R. v. Teskey, 2007 SCC 25, [2007] SCC 25, [2007] 2 S.C.R. 267, at para. 23; R. v. Thompson, 2010 ONCA 463, 256 C.C.C. (3d) 51, at paras. 19-26; R. v. Arnaout, 2015 ONCA 655, [2015] O.J. 5553, at paras. 21-23. As such, I must assess the potential significance of the trial judge’s admitted misapprehension of the evidence without regard to her subsequent “addendum.”
[43] It is important to recall, however, that it not every misapprehension of evidence by a trial judge that will justify appellate interference with the verdict reached. Indeed, the governing judicial authorities are clear that, in order to justify appellate interference with a conviction on the basis of an alleged misapprehension of the evidence, the appellant must meet a “stringent standard” by establishing some link or nexus between the alleged misapprehension of the evidence and the core elements of the judge's reasoning process that resulted in the appellant’s conviction. In other words, the appeal court must determine whether any alleged misapprehension of the evidence was so substantial or essential to the reasoning process of the trial judge, that it led to an unreasonable verdict or caused a miscarriage of justice. See R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 538-541; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 79-81; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60; R. v. Thompson, 2015 ONCA 800, [2015] O.J. No. 60, at paras. 39-40.
[44] Applying that standard in the circumstances of the present case has led me to conclude that the trial judge’s misapprehension of the evidence provides no justification for interfering with the verdict in this case. There is simply no link or nexus between the misapprehension of the evidence and the core components of the trial judge's reasoning process that led to the appellant’s conviction. The misapprehension was not in any way significant or essential to the reasoning process of the trial judge, and certainly did not lead to an unreasonable verdict or cause a miscarriage of justice.
[45] It is important to recall that this misapprehension of the complainant’s evidence took place in the context of the trial judge’s consideration of the defence argument as to the significance of the “discrepancy” between: (1) what she initially told the police about the nature of the sexual assault; and (2) what she later told the nurse and subsequently the police officers conducting the video recorded interview about the nature of the sexual assault. It is, in my view, readily apparent that the trial judge’s analysis of that issue was not dependent upon whether the complainant said, in her video recorded interview statement, that the accused actually digitally penetrated her vagina, or whether his finger remained outside of her vagina, but in her vaginal area. The trial judge’s analysis of that issue was focused upon other relevant considerations. Given the circumstances in which the misapprehension of evidence occurred and the other issues the judge considered in coming to her decision, it cannot be said that there was a nexus between the misapprehension and the core reasons of the trial judge.
D. Conclusion
[46] In the result, the appeal is dismissed. And order shall issue accordingly.
Kenneth L. Campbell J.
Released: January 26, 2016
CITATION: R. v. Thyagarajah, 2016 ONSC 633
COURT FILE NO.: 85/14
DATE: 20160126
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
VARATHRAJAH THYAGARAJAH
REASONS FOR DECISION
[Summary Conviction Appeal]
K.L. Campbell J.
Released: January 26, 2016
[^1] This was not the first time that the trial judge noted that defence counsel was disorganized. The trial judge mentioned the “poor organization of defence counsel” during her first s. 11(b) Charter ruling as one of the “critical elements” that had contributed to the delays in this case. Further, during the course of a scheduling discussion on October 30, 2013, when defence counsel indicated that he wanted to renew his application under s. 11(b) of the Charter (just days after his first such application was dismissed), the trial judge observed that “a lot” of the delay problems in the case were caused or compounded by defence counsel’s “lack of organization.” On appeal, the appellant briefly argued (for the first time) that the comments made by the trial judge during the course of this discussion disclosed a reasonable apprehension of bias on the part of the trial judge. I disagree. In my view, none of the comments by the trial judge during this discussion (or at any point during the trial) could have created such an apprehension. It is important to recall that, in the attribution of periods of delay to one party or the other pursuant to the governing s. 11(b) Charter analysis, the court is not “blaming” any party, but rather is simply noting the factual causes of delay. See R. v. Morin, at pp. 793-794.