Her Majesty the Queen v. Sinnarajah Sivasubramanian, 2019 ONSC 1258

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-30000239-0000

DATE: 20190222

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SINNARAJAH SIVASUBRAMANIAN

Accused

Tom Pittman, for the Attorney General

Christian Pearce, for the Accused

HEARD: November 13 - 23, 2018

B.A. ALLEN J.

REASONS FOR JUDGMENT

BACKGROUND

1The accused, Sinnarajah Sivasubramanian, is charged going back some 17 years with sexual offences in relation to three women. He was arrested in December 2015.

2Mr. Sivasubramanian immigrated to Canada from Sri Lanka. He became a much touted photographer in the Sri Lankan community in Toronto from the late 1990s until 2015 when he was arrested on the charges before the court. Mr. Sivasubramanian gained his fame and success photographing special celebrations in the Sri Lankan community such as weddings, birthday parties, dance performances and coming of age celebrations for young women. The allegations by the complainants in this case arise in relation to photography sessions Mr. Sivasubramanian had with them for their coming of age ceremonies.

3Coming of age ceremonies, otherwise called “puberty ceremonies”, are a feature of the Hindu faith and are held in recognition of a young girl experiencing her first menstrual cycle. At the arrival of the girl’s first period, the girl reports this to her mother. That day the girl’s parents call a Hindu priest to the home and invite close family members to join them to participate in puberty ceremony ritual practices. The priest blesses the girl and women relatives pour a mixture of milk and grass over the girl’s head as part of a cleansing ceremony.

4Shortly following the initial ceremony at the home, a larger ceremony is held at a banquet hall where a larger number of family and friends are invited. The young girl is dressed by her mother and female relatives and for the first time they apply makeup to the young celebrant and dress her in fine traditional saris and adorn her with jewelry.

5It is the common practice for the girl’s family to hire a photographer to take pictures of the girl, her family and to capture in photographs the various celebratory events. Photographs are taken at the initial ceremony at the girl’s home and at the main celebration at the banquet hall. Banquet halls offer a package of services to families seeking to have a ceremony. In relation to this case, in the package purchased by the parents of the complainants, Mr. Sivasubramanian was offered as the photographer for the ceremony.

6Parents also retain the photographer to take studio photos and photos at various scenic venues outside the studio and home such as at parks, beaches and at greenhouse gardens. Mr. Sivasubramanian’s studio at the relevant time was located in Scarborough in a plaza.

7It is alleged that the parents of the three complainants hired Mr. Sivasubramanian to photograph their daughters’ ceremonies. The first complainant named on the indictment, KK, now age 32, was age 13 when she had her first period and encountered Mr. Sivasubramanian in relation to her puberty ceremony. The second complainant, TS, now age 31, was age 14 and the third complainant, TE, now age 31, was age 14 when they began their menstrual cycles and their parents retained Mr. Sivasubramanian for their puberty ceremonies.

8Mr. Sivasubramanian was charged in relation to each of the three complainants with sexual assault under s. 271(1) and invitation to sexual touching under s. 151 of the Criminal Code. The complainants allege that during photo shoots at the studio, and in the case of KK at an outside venue done either before or following their puberty ceremonies, Mr. Sivasubramanian sexually assaulted them.

9It was some 17 years after the alleged abuse that the complainants went to the police. TS was the first of the complainants to report the alleged abuse to the Toronto Police Service in 2015. The police put out a news release asking other persons to come forward to the police if they had similar complaints. KK and TE responded to the news release.

10Mr. Sivasubramanian does not deny doing photo sessions for TE’s and TS’s puberty ceremonies. But he denies sexually assaulting either of them. With respect to KK, Mr. Sivasubramanian denies having taken any photos of her for her puberty ceremony and thus denies sexually assaulting her.

ACQUITTAL ON CHARGES RELATED TO KK

11Following the close of evidence and before closing arguments, Crown counsel requested Mr. Sivasubramanian be acquitted of the charges in relation to KK.

12I agree that Mr. Sivasubramanian should be acquitted of the charges in relation to KK.

13It became evident to me after hearing KK’s testimony and the testimonies of the other complainants and Mr. Sivasubramanian that the Crown could not prove KK’s allegations beyond a reasonable doubt. There are critical areas of KK’s evidence that raise questions about whether it was Mr. Sivasubramanian who took the photos of KK that were shown in court. It would be dangerous to convict Mr. Sivasubramanian on KK’s evidence.

14I therefore acquit Mr. Sivasubramanian on counts 1 (sexual assault) and 2 (invitation to sexual touching) on the indictment.

THE EVIDENCE

Background to TE’s Allegations

15In 1994, at age seven, via Germany, with her parents and siblings, TE fled to Canada from the civil war in Sri Lanka. She attended junior public school and middle school in Toronto where she completed grade 8 in 2001. She then moved to Brampton where in 2005 she completed grade 12 at Chinguacousy Secondary School. She then attended York University where she graduated with an undergraduate degree in Psychology. TE also completed a Master’s Degree at McGill University in Counselling Psychology.

16TE did not recall the exact month she started her period. She knew she was age 14 and in grade 8. She said her ceremony took place sometime in 2001, she thought, in the fall some months after the photo shoots. Her parents hired the Ellas Banquet Hall in Toronto to convene the ceremony. Sometime before the photo shoot at the studio, there was a photo shoot by Mr. Sivasubramanian at an outside garden. She said her parents, siblings, aunt, and cousins were there.

17TE testified her family went to Temple but she did not know much about Hinduism herself. She said she did not like the idea of the puberty ceremony where girls have to disclose to everyone when they start their first menstrual cycle.

18TE explained that in Sri Lankan culture ideas about sex and sexuality are not discussed openly. Parents normally do not talk about sex or sexual body parts with their children and children do not ask questions about those things. TE never discussed sex with her parents and did not discuss her allegations against Mr. Sivasubramanian.

19TE described herself as very naïve about sex at age 14 when Mr. Sivasubramanian assaulted her. She did not know about sexual body parts, what they were called and how they functioned. She never saw a penis erect or flaccid. She never talked about this with friends. She said she had sex education in school but did not recall in which grade. She thought she might have tuned out during sex education classes thinking that the topic was “icky”. It was during her studies in second or third year at York University, which she began to attend at age 21, that she became attuned to issues of sex and sexuality through an Adolescent Psychology course.

20TE met a girl named J.S. in grade 10 at Chinguacousy Secondary School. They would go on to become close friends until the present. Ms. J.S. had herself experienced sexual assault and developed an interest in assisting other victims. TE recounted her experience with Mr. Sivasubramanian and says her discussions with Ms. J.S. helped to encourage her to appreciate that she was not at fault for what happened to her.

21Before her disclosure to Ms. J.S., TE had previously disclosed her allegations to her cousin who had her puberty ceremony photographed by Mr. Sivasubramanian about two years after TE’s ceremony. TE and Ms. J.S. set up an organization in 2016 for the purpose of supporting other Tamil girl victims of sexual abuse. TE and Ms. J.S. went on to study together at York and McGill Universities.

22TE met one of the other complainants, TS, through Ms. J.S. at Ms. J.S.’s birthday party in 2016. TE indicated she had not met TS before that. TE acknowledged that while both she and TS attended York University at the same time their paths never crossed. TS went to the police ahead of TE. TE testified she only discussed with TS the detective she spoke to and asked TS about her police interview.

23TE also went to Chinguacousy Secondary School at the same time as the other complainant, KK. TE testified they were only “hi and bye” acquaintances and Facebook friends. TE testified she posted on Facebook the press release from the police offering that anyone who wished to talk to Det. Matt Sattler, the officer in charge of the investigation, could contact her. TE testified she did not communicate with KK about her experience beyond the messages she posted on Facebook.

TE’s Disclosure

24TE’s evidence is that when she discovered at her cousin’s puberty ceremony that Mr. Sivasubramanian was still doing photography she told Ms. J.S.. Ms. J.S. told TE that TS had named the photographer who had abused her and Ms. J.S. relayed the name to TE. This is when TE learned that Mr. Sivasubramanian was the same abuser who was now operating his business from his home basement. Ms. J.S. connected TE with Det. Sattler. As noted above, TS had already attended the police station to disclose her experience when TE made her complaint.

TE’s Sexual Abuse Allegations

Evidence In-Chief

25Mr. Sivasubramanian did the photography for TE’s ceremony in 2001 at the studio, at the banquet hall and at the outside venues. It is Mr. Sivasubramanian’s treatment of TE at the photo studio that is the subject matter of her allegations.

26TE arrived at the studio with her mother, father, brother and sister. TE described the studio in some detail. She indicated that inside at the front of the business was a waiting area with a reception desk with photographs on a stand and photographs behind the desk on the wall. She testified that the photo studio was straight ahead from the entrance to the premises. There was a door from the reception area into the studio area.

27TE believed the woman behind the reception desk was Mr. Sivasubramanian’s wife. She estimated the studio space where photographs were taken was about 7 – 8 metres by 4 – 5 metres. She said there was a change room but she could not recall its location. She also could not recall the various instances when she changed her clothes.

28TE testified Mr. Sivasubramanian first took pictures in the studio of the whole family and then of her siblings. According to TE, Mr. Sivasubramanian asked the family to leave the studio and sit in the waiting room during TE’s photo shoot because he said it was going to take a while. TE’s memory is that her family members never returned to the studio room.

29TE testified Mr. Sivasubramanian would guide her verbally and physically to do various poses. She testified the directions began to become more physical. During one pose she said Mr. Sivasubramanian stood behind her and pressed his penis against her over her clothes. She said his penis was hard. She stated that he placed her hands on his penis. She stated that Mr. Sivasubramanian then put his hands down her skirt and placed his fingers into her vagina. She testified she “froze” when that occurred.

30TE testified that at one point there was a knock on the studio door. Mr. Sivasubramanian answered the door and his wife entered to retrieve something. Mr. Sivasubramanian exchanged words with her which TE could not hear but she thought he was rude to his wife. The photographing stopped after the wife left the studio. TE and Mr. Sivasubramanian then walked out of the studio into the waiting room.

31TE testified she did not tell anyone what happened to her because she was scared. She testified she did not understand what had happened to her. She had to process it. TE said she knew what Mr. Sivasubramanian had done was not proper. But because of her naiveté she did not know he had committed a sexual crime.

32TE testified about overhearing a telephone conversation shortly after the studio photo shoot between her father and Mr. Sivasubramanian in which Mr. Sivasubramanian told the father that he lost the photos from the photo shoot at the studio and TE would have to come for another photo shoot. TE testified she told her parents she did not want to go. There was not going to be an additional cost and her parents insisted that she go.

33TE testified that at the second shoot she wore only one outfit. Her parents remained in the studio for the photo shoot. She was not sexually assaulted on that occasion.

Evidence on Cross-Examination

34At trial, TE was looking back 17 years to recall the details of the sexual assault and the circumstances surrounding it.

35TE underwent strenuous cross-examination. She was questioned about dates when certain events occurred. She was questioned in great depth about the outfits she wore for the first studio shoot and the circumstances around the changes of the outfits. Particular focus was on her memory of which outfit TE was wearing when she says she was assaulted, the chronology of her wearing that outfit in relation to other outfits, the details of the outfits and the lengths of time between changes. She was also challenged on her description of the assault and her evidence about her naiveté about sex and body parts.

36TE testified that she recalled wearing a long black skirt and a top when she was assaulted. She did not recall the colour of the top. She first said she thought it might have been purple. She stated that she did not remember if that was the first outfit she wore or not. She also testified that she believed that it was the outfit she was wearing when her family left the room.

37TE recalled that she changed more than once, possibly three times, that she changed in a room separate from the studio, and that her mother helped her change. Defence counsel challenged TE that she had changed outfits more than three times. Defence counsel established through a series of photograph exhibits that there were six outfit changes. TE testified she was not certain of the number of outfit changes and did not recall where the change room was in relation to the studio area.

38Defence counsel showed TE a series of photos including one in a long black skirt which shows her wearing a purple blouse with that skirt. Defence counsel cross-examined TE about her smile in the pictures including the photos where she is wearing the long black skirt and purple blouse. Defence counsel suggested that she seems content in the photos, that she did not show signs of displeasure.

39TE testified she smiled in the photos because she was expected to smile. She testified she did not want to disappoint her parents. The puberty ceremony was supposed to be a happy occasion, a celebration. TE testified she smiled but she was not happy about what she was experiencing.

40Defence counsel challenged her on her evidence that she thought the photo shoot in the studio took place in the fall of 2001. Defence counsel presented her with contact sheets of photos from the shoot that contained a date in March 2001. TE responded that she simply did not recall the exact timing of the shoot.

41Defence counsel further challenged TE on the chronology of when she wore the long black skirt and purple blouse. He showed TE that in the final shot for the session she was wearing a white top and long black skirt. He suggested that she changed her outfits after she wore the long black skirt and purple blouse.

42TE responded that perhaps she was wrong about the colour of the blouse she was wearing when she was assaulted. She testified that she remembers that no further photos were taken after she was assaulted. But she said she did recall that she had worn the black skirt and purple blouse sometime during the shoot.

43Defence counsel challenged TE about the evidence that she did not understand the nature of the act Mr. Sivasubramanian committed. He questioned her about her evidence that she did not know that it was his penis Mr. Sivasubramanian placed her hands on; that she learned in 2006 from her course at York University the implications of Mr. Sivasubramanian’s acts; and about her taking eight years after understanding the nature of her experience to disclose to the police.

44TE insisted she had no appreciation of the nature of what Mr. Sivasubramanian had done to her. She said that she never felt good about what happened. She felt it was wrong and felt guilty about it. She said her biggest revelation after going to therapy while at York University was that what happened was not her fault. This helped motivate her to eventually go to the police.

Background to TS’s Allegations

45TS, now age 31, was born in Sri Lanka and immigrated to Canada in 1992 with her mother and two siblings. Her father had immigrated in 1990. She attended public and secondary schools in different parts of Toronto graduating in grade 12 in 2006. She attended York University graduating in 2010 with a Bachelors’ Degree in Psychology and Biology. She attained a Masters’ Degree in Social Work at University of Toronto in 2013. She obtained a position as a social worker with the Children’s Aid Society in 2014.

46TS had her first menstrual cycle in January 2001 when she was age 14 and in grade 7. There was a traditional puberty ceremony at her family home. The larger ceremony was to be held at the East Town Banquet Hall. TS stated that the ceremony took place in July 2001. Her parents retained a videographer and a photographer she knew at the time as Photo Siva. The videographer and photographer were part of the package offered by the hall.

47The arrangement was that the photographer would take photos at the ceremony, at a greenhouse and at his photo studio. As it turns out, as dealt with below, there were two sessions in the photo studio. She believed the studio sessions took place after the ceremony and when school was still out in the summer in July or August 2001.

TS’s Allegations of Sexual Assault

Evidence In-Chief

48TS went to the photo studio with her father and mother and two young siblings. She testified that before the family arrived at the photo studio they went to a greenhouse where photos were taken. They then went to the photo studio where they met an aunt. She recalled her siblings stayed in the car and the parents and aunt went with her into Mr. Sivasubramanian’s business premises. The mother and aunt remained at the premises and the dad joined the children in the car. Mr. Sivasubramanian’s wife and two young children were on the premises as well.

49TS testified she changed into three different outfits. She testified she was alone with Mr. Sivasubramanian during the photo shoot. She stated that she did not recall which outfit she wore first. She testified that the door to the photo studio area was closed. TS’s evidence was that the mother and aunt were not in the photo studio during the shoots. They remained in the change room to assist with outfit changes during the first of the two sessions conducted at the studio.

50TS described the studio and Mr. Sivasubramanian’s method of operation. There was a desk, stands, lighting and other equipment in the room. There was a screen behind her. He would direct her verbally and physically into poses. It was when he directed her physically that he assaulted her while he had his camera around his neck each time.

51TS testified she was wearing a half-sari when he first assaulted her. That was comprised of a crop top blouse with a shawl over it and a long skirt. She said Mr. Sivasubramanian put his hand under the shawl over the blouse and touched her breasts. She recalled he cupped and massaged her breasts. He pressed his body against hers and she could feel his erect penis against her body. TS stated that Mr. Sivasubramanian committed these acts several times throughout the photo shoot. She did not recall the other outfits she wore besides the half-sari. The wife walked in at one point without knocking but he continued to take photos after she left.

52TS also stated that he spread her legs apart holding her ankles and ran his hands over her inner thighs and over her vagina on top of her clothes. She does not recall which outfit she had on when he did this. She does not recall how many times he did this. The first session in the studio lasted about one hour.

53Subsequent to that photo session, TS testified she learned Mr. Sivasubramanian told her father that he had lost the first set of photos he took in the studio. Sometime later he took a second set. TS stated that she received an album of photos and that the album contained photos only from the second photo shoot at the studio and photos taken at the greenhouse.

54During outfit changes, although being assisted by her mother and aunt, TS did not tell them what was happening to her. But she asked her mother if they could leave the photo session. Between the first and second photo shoots TS did not tell anyone about her experience.

55For the second round of photography, according to TS, she and her family first went to the greenhouse where Mr. Sivasubramanian took photographs. They then went to the studio where they met the aunt. The aunt and mother stayed in the change room to assist with outfit changes. The father and the siblings remained outside. TS testified she wore the same outfits as she did for the first session.

56TS stated that Mr. Sivasubramanian committed the same sexual acts on her as he did during the first photo session in the studio. He cupped and massaged her breasts and spread her legs and slid his hands over her thighs and over vagina on top of her clothes. He pressed his body against hers but TS indicated she could not recall anything about his penis. Again, the door to the studio room was closed.

57TS stated that when changing into another outfit, she asked her aunt to stay with her in the studio while further photos were being taken. Her aunt remained in the studio for a while. TS’s evidence is that the aunt knocked over some equipment and Mr. Sivasubramanian asked her to leave the studio. He said to TS when people are in the studio, he cannot position her the way he likes. She stated that he then touched her. TS testified that she understood his words to mean that he knew he had done something wrong and that he could not touch her in front of other people.

58For years TS did not tell anyone what Mr. Sivasubramanian had done to her. However, she testified she made it clear to her parents that she did not want to be there. She said for that reason, the second session at the studio was shorter than the first. It lasted about 45 minutes.

Evidence on Cross-Examination

59TS underwent prolonged and detailed cross-examination. Defence counsel challenged TS that she did not have photos taken at the greenhouse before she went to the studio. Defence counsel showed her a series of photos which appear to have been taken in a park.

60TS said she did not recall those photos but she was sure photos were taken at a greenhouse. TS did not recognize the photos defence counsel showed her of her posing in a park setting. She testified that she did not receive those photos. TS explained that the photos her family was given were those taken at a greenhouse photo shoot before the second session at the studio. Her evidence was that the photos in the park must have been taken before the first session at the studio which Mr. Sivasubramanian did not give to her family. TS testified that she had never seen the park photos before trial.

61Defence counsel questioned TS about the layout of the premises. TS testified that one reached the change room by a separate hallway from the waiting room to the right of the studio. She rejected defence counsel’s suggestion that one had to pass through the studio area to get to the change room. She estimated the studio area was about 8 ′ x 7½ ′. She confirmed that her mother and aunt remained in the change room.

62Defence counsel challenged TS’s testimony in-chief that the half-sari, which she said was the first outfit she recalled wearing when first abused, was not the first outfit she wore at the first studio shoot. TS responded that she does not recall all of the outfit changes. She does not recall whether there was touching before the half-sari, but the first touching she recalls is when she was wearing the half-sari.

63Defence counsel showed TS contact sheets of photos of her wearing various outfits taken at the studio. She indicated she recognized those photos because they were photos from the second photo shoot, photos the family received from Mr. Sivasubramanian. TS insisted that the only photos her family received were of the ceremony and from the second session at the greenhouse and studio.

64TS testified she smiled in photos because she was expected to, not because she enjoyed the sessions. She testified she knew immediately that what Mr. Sivasubramanian had done to her was inappropriate. She said her family did not shy away from talking about body parts and she had taken sex education in school by 2001.

65Defence counsel asked a multitude of questions about minute details of her photo studio sessions. TS’s general testimony is that she recalls the shoots but not the details about the outfit changes, the timings during and between outfit changes. Nor did she recall all the outfits she wore while she was being abused, nor the various backgrounds to the shoots.

66Defence counsel questioned her about which month the photo shoots took place. TS said in-chief that the shoots took place before school returned in the summer of 2001. Defence counsel pointed out, relying on the date on photo contact sheets that the photo shoots happened in mid-September. TS accepted that was the case but reiterated that her memory was that the shoots happened in the summer.

TS’s Disclosure

67During the period before TS went to the police in 2015 she did not tell her parents about the assaults because she, as she put it, did not have the words to tell them and she did not want to upset them. However, while in high school when she was age 16, she told her sister. In 2012, while in her Masters’ Program at University of Toronto, she met Ms. J.S..

68TS testified she shared her story in 2013 with Ms. J.S. on her way home from the birthday party TE referred to in her evidence. TS testified that without naming names, Ms. J.S. told her of other victims of abuse by Mr. Sivasubramanian. TS testified that although she knew TE, before she went to the police she did not discuss with TE her abuse by Mr. Sivasubramanian. Subsequently, TS began to volunteer with the support organization Ms. J.S. and TE founded to help Tamil girl victims of sexual abuse.

69TS stated that the next time she saw Mr. Sivasubramanian after the photo sessions in 2001 was at a wedding anniversary in September 2015 before she went to the police. TS’s sister encouraged her to report to the police. TS testified she knew the photographer as Photo Siva and learned from a Google search before she went to the police that his business was called Y2K Studios. TS’s sister was first to report the sexual assault to the police on TS’s behalf and TS then made a statement to the police herself in October 2015.

70Defence counsel cross-examined TS about her relationship with Ms. J.S. and TE. TS responded that she met Ms. J.S. for the first time in 2012 at York University and they remained friends. She met TE for the first time at Ms. J.S.’s birthday party before she reported to the police but they have been acquaintances, not friends.

71TS denied defence counsel’s suggestion that before TS disclosed to the police, Ms. J.S. had revealed to TS TE’s allegations of abuse by Mr. Sivasubramanian. TS explained that as victims of sexual abuse they do not share stories about another person’s abuse unless that person has given permission to share their story. TS’s evidence is that Ms. J.S. did not tell her the names and experiences of other victims of Mr. Sivasubramanian presumably because she did not have their permission.

Mr. Sivasubramanian’s Evidence

Background

72Mr. Sivasubramanian, now age 59, was born in Sri Lanka and immigrated to Canada in 1991 at age 32. He graduated from a university in India with an engineering degree. He has two adult children, a daughter and a son. He first developed an interest in photography while studying in India. He purchased a camera in 1992 and started a business in Canada which he first called Siva Studios.

73On March 1, 2000, he renamed his business “Y2K Studios” because there was confusion in the community due to another business called “Siva Studios”. He testified he operated from a plaza on Eglinton Ave. E. in Scarborough from 2000 to 2001/2002. He explained that the name “Siva” is a very common name for men in the Tamil community and that three other photographers who worked with him were called “Siva.”

74Mr. Sivasubramanian photographed birthdays, weddings, wedding shows, puberty ceremonies, commercial products, ceremonial dances and did photos for souvenir pamphlets. He became a much in demand photographer in the Tamil community. He estimated he would photograph as many as 500 events in one year. On average he photographed approximately 30 – 40 puberty ceremonies per year from 1999 to 2015. Puberty ceremonies constituted 30 – 40 percent of his business.

75Mr. Sivasubramanian drew an illustration of the layout of his business premises that was different from TS’s evidence. He described the reception desk situated inside the entrance to the premise. He stated that to the right after one enters the premises there was a hall that led directly into the studio space.

76Inside the studio space was a table and a change room which was a separate room. Mr. Sivasubramanian’s evidence is that there was not a separate hallway leading to the change room. There was no separate door to the change room outside the studio as TS testified. That is, one would have to pass through the studio area to get to the change room. He estimated the studio dimensions, without the change room, to be about 500 sq. feet, much larger than described by TE and TS. Mr. Sivasubramanian testified he used the change room as a dark room. So if there were a separate door outside the studio area that could lead to someone walking in and exposing the light sensitive photographic paper.

77Mr. Sivasubramanian further testified there is often a mother or aunt who assisted with makeup and outfit changes for the young girls. The mothers and aunts would stand by to help with poses. He testified that generally the girls are difficult to manage and that up to 75 percent of the girls at that age were not enthusiastic about the photo shoots.

78Regarding setting up poses, Mr. Sivasubramanian testified he would first try to physically demonstrate a pose himself. If the girl could not do the pose on her own, Mr. Sivasubramanian said he would first call on the mother or aunt to physically adjust the girl for the pose. If the girls were not accompanied by anyone, or if there is a language issue with the girls not understanding Tamil, Mr. Sivasubramanian would have to touch the girls’ bodies to assist with the pose. He testified in about 75 percent of cases he had to touch the girls to achieve the appropriate pose.

79Mr. Sivasubramanian confirmed that he would take photographs outside his studio at parks, at a greenhouse at Allan Gardens in downtown Toronto and at the Scarborough Bluffs. He testified that many other Tamil photographers used those outside venues to take photographs related to ceremonies.

80Mr. Sivasubramanian testified he keeps computer records of the ceremonies he has photographed. Before he used digital cameras he did not have electronic image records of the photographs he took. He stated that in the pre-digital days he would have records on file of who registered with him. Mr. Sivasubramanian kept a calendar/diary of his appointments with clients. To search for a past pre-digital client’s photographs, he would have to search his records for negatives of the photographs. He testified he has both negative and digital records of all the events he has photographed from 1995.

81Mr. Sivasubramanian confirmed the Crown’s witnesses’ evidence that the halls where the parents wished to hold the ceremony offered packages that included him as the photographer and also included a videographer. The parents of the girl would attend at the hall and choose the package they wanted and register to retain the hall with the photographer and videographer.

Mr. Subramanian’s Evidence In-Chief

Mr. Sivasubramanian’s Evidence on TE

82At trial Mr. Sivasubramanian looked through the photos depicting TE. He said he recognized her. He recalled that the father, mother and TE came to his studio to look at albums of photos after they had registered with the hall for the ceremony which was to take place January 21, 2001. He also recalled that the parents chose the venues for the photographs. According to Mr. Sivasubramanian, they chose the Allan Gardens greenhouse and the studio.

83Mr. Sivasubramanian testified he did not recall the photo shoot of TE at the studio very well. He did however recall the date was in March 2001. He remembered that TE came with her parents and siblings. He said his wife and children and perhaps other customers were on the premises. He said that after TE and her family entered the premises they all went into the studio area. He took family photos and the father left the studio early on. Contrary to TE’s evidence, Mr. Sivasubramanian said the mother and children remained in the studio area with him and TE.

84Mr. Sivasubramanian testified that the mother put a number of TE’s outfits on the table in the studio. It is Mr. Sivasubramanian’s evidence that the mother and children stood by the table during the various shoots. The children would come and go back and forth but the mother remained in the studio through the entirety of the photo shoot.

85Mr. Sivasubramanian said he took several photos of TE in casual dress and then asked her to change her outfit. He left the studio after that request. He stated because he was outside the studio and he closed the studio room door, that he was not aware of whether TE went into the change room to change. He recalled that TE and the mother used the mirror in the studio to adjust the outfit and one of the children came out of the studio to tell him TE was ready for the next shoot.

86Mr. Sivasubramanian continued the shoot with five or six different outfits. He changed the backgrounds to suit the outfits. He said he would demonstrate the poses. He spoke in Tamil and indicated he detected no language barriers because TE complied with his instructions. He stated that TE appeared “normal and happy.” Mr. Sivasubramanian, contrary to TE’s one hour estimate, estimated the photo shoot lasted from two to two-and-a-half hours.

87Mr. Sivasubramanian testified that the photo shoot ended “happily” with him taking further family shots including the father and several close-up glamour shots of TE. When the shoot ended he recalled the mother and TE folded the outfits. Mr. Sivasubramanian definitively denied touching TE’s body inappropriately. He denied running his hand over her thighs and vagina.

88Mr. Sivasubramanian confirmed that there was a second photo session at the studio. But he gave a different reason than TE for the second session. He testified that out in the waiting room before the family left, the father told him there was another dress he wanted TE to wear in a photograph with him (the father). He testified the second shoot took place one or two months later. He says he observed that the family seemed very tired on that occasion. TE and the other children were all uncooperative.

89In spite of Mr. Sivasubramanian’s observation about the general uncooperativeness of puberty celebrants, he testified TE was “very happy”. He took one or two family photos and four or five of TE alone. He recalls there was only one outfit change because it seemed to him everyone was tired. The family left immediately after the shoot finished.

90Mr. Sivasubramanian testified he next saw TE at her cousin’s puberty ceremony. Defence counsel showed him photos of that ceremony where he took photos which included TE smiling. He says TE had no difficulty smiling and posing for the photos when he requested it. He said her parents and TE spoke to him “comfortably” at the cousin’s puberty ceremony. Mr. Sivasubramanian commented that he saw TE after the cousin’s ceremony three or five times at events including her uncle’s wedding in 2009.

Mr. Sivasubramanian’s Evidence on TS

91Mr. Sivasubramanian testified that he got involved with TS’s puberty ceremony when her father came on May 13, 2001 to the studio to order photo packages after the father had registered to have the ceremony at the hall. As TS testified and the photo contact sheets reveal the ceremony was scheduled for July 21, 2001.

92Mr. Sivasubramanian first took photos of TS and her family at their home on the morning of July 21, 2001. He described TS as shifting from bad moods to good moods making it difficult to take photos of her. She would not listen to him when he gave her instructions. It appeared to Mr. Sivasubramanian that she was not interested in having the photos taken. Two hours later they went to the hall where he took more photos.

93Unlike TS’s memory, Mr. Sivasubramanian said the next photo sessions were in mid-September 2001. He met TS, her two siblings and her parents in Milliken Park where the first photos were taken. He was also taking photos for two other families at the park that day. He was using his new Kodak DSC 760 digital camera. After the session at the park everyone travelled to the studio where they met TE’s aunt. He testified his wife and children were at the studio.

94Mr. Sivasubramanian testified that the mother and aunt went into the studio area. According to him, they went into the change room for the outfit changes coming out only occasionally. He testified TS was not cooperative. She would not smile. He tried to demonstrate poses and she resisted. He had to adjust her physically and she would not cooperate. He decided to take the photos quickly. After a few photos he asked her to change her outfit. He left the room for the outfit changes.

95Mr. Sivasubramanian continued to take photos but TS would not smile, would not comply with his instructions. The aunt went into the studio. The mother remained in the change room. Mr. Sivasubramanian said he did not change the background as he usually did because he was rapidly taking one photo per minute.

96Mr. Sivasubramanian testified that when TS was to pose in her half-sari, it was not on properly. According to him her mid-section skin was exposed and the sari needed to be closed. He asked TS to adjust it herself. She refused and he had to touch her on her mid-section to adjust it. He stated that neither TS, the aunt nor the mother told him not to touch her.

97The next pose required TS to sit on the floor. Mr. Sivasubramanian testified that the skirt of the outfit required spreading which the aunt assisted with. The aunt adjusted the back of the skirt and he adjusted the front. The aunt did not do it properly and according to Mr. Sivasubramanian, he had to re-adjust the back.

98Mr. Sivasubramanian denied massaging TS’s breasts saying he never touched her there. Mr. Sivasubramanian testified he did not recall touching TS’s legs and his hands did not come close to her vagina. He testified that he was taking the photographs in such rapid succession that he would not have had time to press his body against hers. He denied having an erection.

99Mr. Sivasubramanian confirmed TS’s memory that his wife walked into the session to inform him of something. He said this was not upsetting to him. He indicated that she came into the studio regularly. He said his children also entered the studio during the session which also did not disturb him.

100Mr. Sivasubramanian testified when he was downloading files from his new Kodak Pro DCS 760 camera to his computer that the images of the session at Milliken Park were contaminated. He offered to take more photos at no added cost. He had only had the new camera 10 – 12 days and was not sufficiently skilled with it. He called the father and said he would do another session. The second session was conducted in the Allen Gardens greenhouse. He explained that he was eventually able to retrieve the lost files because in 2002 advanced technology allowed recovery of contaminated files.

101Mr. Sivasubramanian testified that again TS would not smile during the greenhouse session. Contrary to TS’s evidence, his evidence was that there was no further session at the studio.

Mr. Sivasubramanian’s Evidence on Cross-Examination and Re- Examination

102Mr. Sivasubramanian was born in Sri Lanka and is 59 years of age. He lived in Sri Lanka for 32 years before he came to Canada. He has practised the Hindu faith throughout his life. He attends Temple regularly. His evidence is that 30 - 40 percent of the events he photographed were puberty ceremonies. Crown counsel questioned Mr. Sivasubramanian about his knowledge of the meaning of the puberty ceremony for young girls and the implications of the rituals.

103Mr. Sivasubramanian testified he had little knowledge about puberty ceremonies. Crown counsel questioned him about the significance of the ritual of pouring milk and grass on the girl’s head. Mr. Sivasubramanian testified that he was not aware of this. Crown counsel put to him that the milk is poured to cleanse the girl because in the Hindu faith women on their menstrual cycle are considered unclean. Mr. Sivasubramanian expressed ignorance of this.

104Mr. Sivasubramanian’s answer to the suggestion that women are not allowed to wear flowers when menstruating was, “it could be”, and he further stated that he was not aware of that ritual. Crown put to him his evidence that his own daughter had the milk pouring ceremony at his home and Mr. Sivasubramanian’s response was that he did not know the significance of the ritual and there is “no need to know those things”.

105Crown counsel questioned Mr. Sivasubramanian about how he was able to recall the sessions with TE and TS given that he had photographed hundreds of puberty ceremonies between 1998 and 2001, about 40 ceremonies per year.

106Mr. Sivasubramanian responded that after he was arrested he “reached into his memory” to recall the ceremonies for those girls. He stated that when he heard their names in connection with this case he did not recognize them. It was after he learned their names from Facebook that Mr. Sivasubramanian began searching his computer files. He said he began thinking back on the details of TE’s and TS’s photo shoots.

107Mr. Sivasubramanian explained that his memory about TE and TS was enhanced by his connections to their families. He said that he had continued to be in touch with TE’s family photographing other events and that TS’s family is from the same village in Sri Lanka that he is from and their families are connected through common relatives.

108Mr. Sivasubramanian said he did not recall the aunt knocking over equipment in the studio. He denied that he kicked anyone out of the studio. He testified the photo studio is large enough to accommodate extra people.

109Mr. Sivasubramanian agreed that TS was correct in her recall that he called her father to set up another session because some of the photos from the first session were lost.

110On re-examination Mr. Sivasubramanian confirmed that his memory of TE’s and TS’s photo sessions comes from the digital photo records, his calendar/diary entries and his continued connection with their families. He also explained that with her parents’ permission, he had displayed TE’s photos in his studio.

BASIC LEGAL PRINCIPLES

Single Accused Charged with Multiple Counts

111Mr. Sivasubramanian is charged with the same offences in relation to each of the complainants. The Crown did not bring a similar fact application to have prior or extrinsic discreditable conduct alleged by the complainants be admitted across the counts on the indictment against Mr. Sivasubramanian. I therefore must make a determination on each of the complainant’s allegations based on the evidence related to the charges associated with that complainant: R. v. Arp, 1998 769 (SCC), [1998] 3 SCR 339 (S.C.C.). This requires the court to deal with the charges on the indictment separately for each complainant.

The Rule in R. v. W. (D.)

112Mr. Sivasubramanian chose to testify in his own defence and has presented evidence contrary to that of the Crown. Thus, the well-known principles enunciated in R. v. W. (D), 1991 93 (SCC), [1991] 1 SCR 742 (S.C.C.) must be observed. If I believe Mr. Sivasubramanian I must obviously acquit him; if I do not believe him but I am left with a reasonable doubt by his evidence, I must also acquit him; and further, even if I am not left with a reasonable doubt by Mr. Sivasubramanian’s evidence, I must ask myself, based on the evidence that I do accept, whether I am persuaded beyond a reasonable doubt by Mr. Sivasubramanian’s evidence of his guilt. Those principles must not only be applied to Mr. Sivasubramanian’s evidence but must be applied to other exculpatory evidence: R. v. B.D., 2011 ONCA 51, at paras. 113-114, (Ont. C.A.) and R. v. Cyr, 2012 ONCA 919, at para. 50, (Ont. C.A.)

113In applying those principles an “either/or approach” is not to be used. The trial judge should not engage in a determination based on a credibility contest between the accused and the Crown’s witnesses, pitting the parties’ versions of the evidence against each other. The accused’s version “is entitled to the benefit of the doubt unless when considered in light of all the evidence the jury is satisfied beyond a reasonable doubt that the Crown’s version is correct.”: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at paras. 28 and 29, (S.C.C.).

The Evidence of Young Persons in Sexual Assault Cases

114The complainants in this case, both age 14 at the time of the alleged assaults, took some 17 years to disclose the sexual assaults. That there is delay in disclosing sexual offences, particularly by young victims, is a well-known reality. That can be the case whether the perpetrator is a family member or not. In the case before me the accused was a well-known and well-respected photographer in the Tamil community. There is also the added factor expressed by the complainants that Tamil families are generally reluctant to speak about sex-related issues.

115Courts have commented on the evidence of children in sexual abuse cases:

It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.

[R. v. T.E.M., 1996 ABCA 31, at para 11, (A.B.C.A); see also, R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 31 and 32, (S.C.C.); R. v. C.B., 2008 ONCA 486, at paras. 38-40, (Ont. C.A.).]

116Young victims’ inability to recall certain types of details of their sexual assault experience is also well-recognized. The Supreme Court of Canada observed:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[R. v. B. (G.), 1990 7308 (SCC); and [1990] 2 S.C.R. 30, at p. p 54 - 55, (S.C.C.)].

117The Ontario Court of Appeal commented on how to view the age factor with adult victim witnesses in historical sexual offence cases where the offences occurred when the victims were young:

At p. 42 of [the trial judge’s] reasons, he noted the Supreme Court’s direction in R. v. W. (R.), at p. 134, that when the evidence of an adult witness concerns events that occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.” He also observed, at p. 42, that: “[t]he credibility of any witness, including children, is to be considered in the context of the witness’ capability, mental or otherwise, in the circumstances of the case.” This accords with McLachlin J.’s caution in R. v. W. (R.), at p. 144.

[R. v. O.M., 2014 ONCA 503, at para. 51, (Ont. C.A.)]

ANALYSIS

Determination on TE’s Allegations

Summary of TE’s Evidence

118TE was age 14 when she says Mr. Sivasubramanian sexually assaulted her in 2001. That was 17 years ago. She was age 31 at the time of trial looking back at her early teenage years. She made the complaint to police in 2015 some 14 years after the encounter with Mr. Sivasubramanian at his studio.

119TE’s allegation is that Mr. Sivasubramanian stood behind her and pressed his erect penis against her over her clothes, placed her hands on his erect penis, and put his hands down her skirt and placed his fingers into her vagina.

120TE testified to being very naïve at the time of the assault about sex and the functions of sexual body parts. She explained it was common in the Tamil community for parents not to speak about sex or the functions of sexual body parts with their children. Her parents did not explain sexuality to her. Tamil children are not to ask questions about this.

121Defence counsel argued that TE’s evidence of her naïveté about sex at age 14 is absurd and should not be believed. This according to the defence should diminish her credibility in the eyes of the court. I see this differently.

122TE testified she did not discuss sex with her family or friends. She said she had sex education classes in school but she did not want to absorb the teachings because she found the topic “icky”. Looking at TE’s evidence from the perspective of Tamil culture, I do not have a problem accepting TE’s evidence, that at the time of the assault she had never seen a penis and did not know about erect penises. It is not unrealistic to believe that TE was simply more sexually immature than the average girl of her age in Canada at that time.

123TE knew immediately that what Mr. Sivasubramanian did to her was inappropriate although she did not understand what he did. She did not know it was a sexual crime. TE said she felt guilty. TE began to learn about sex in her 20s in an Adult Psychology class in university. She first disclosed to her cousin what happened to her at her cousin’s puberty ceremony two years after her (TE’s) ceremony. TE then, while attending university, disclosed to an old high school friend, Ms. J.S., who had herself been sexually assaulted.

124I find TE’s evidence credible that it was after her disclosure and discussions with Ms. J.S. and after going to counselling at university that she began to appreciate that what happened to her was not her fault and that she should not feel guilty and that this prompted her to go to the police.

125The defence pointed out that TE, KK and TS were all acquainted with each other either at secondary school in Brampton or at the University of Toronto or York University. There was a common acquaintance or friend in the person of Ms. J.S. who went to either secondary school and/or university at the same time as all three complainants. I have acquitted Mr. Sivasubramanian in relation to KK.

126The defence does not allege actual collusion amongst TE, Ms. J.S. and TS. The defence does not argue that the two complainants and Ms. J.S. secretly cooperated in an unlawful way in order to have Mr. Sivasubramanian prosecuted for sexual offences. The defence contends TE’s and TS’s evidence has been tainted by them communicating with each other and Ms. J.S. and as such this stands to undermine the probative value of their evidence: R. v. J.F., 2003 52166 (ON CA), [2003] O.J. No. 3241, at para. 88, (Ont. C.A.); R. v. Shearing, [2002] 3 S.C.R., at para. 44, (S.C.C.).

127TE strongly rejected the defence suggestions stating that she complained because she had herself been abused by the same photographer and did not discuss the details of her abuse with TS.

128TE, TS and Ms. J.S. to greater and lesser extents knew each and communicated with each other about sexual abuse. This gave them the opportunity to collude. However, the law is clear that evidence of a “mere opportunity” for collusion is not sufficient. Courts have recognized that sexual offences involving numerous complainants are often marked with opportunity. Courts have also clarified that it is concoction and collaboration not mere contact that is at issue: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 111, (S.C.C.).

129Defence counsel further challenged TE on the chronology of the puberty ceremony events in relation to the photo shoots.

130TE was not clear on the exact chronology. TE did not have a precise memory of some peripheral details of the venues of the photo shoots. She did not recall the exact dates and times of the ceremonies at her home and the banquet hall. TE did not recall the exact dates and times of the photo shoots. She knew from her memory of when she started her period that the events occurred in 2001. That year is supported by Mr. Sivasubramanian’s evidence. TE estimated that the photo shoots took place in the fall of 2001. Photos presented by defence counsel show the date of the shoots to be in March 2001. TE responded that she simply could not recall the exact day or month.

131Defence counsel confronted TE with photographs to contradict her on the number of outfit changes and to challenge her on the time periods between the outfit changes, the order of the outfit changes, and the colours of the outfits worn at particular times. Defence counsel challenged TE about the colour of the outfit she was wearing when she was assaulted and when in the chronology of outfit changes Mr. Sivasubramanian assaulted her. TE had difficulty being precise about some of those details.

132TE testified her memory was that it was after Mr. Sivasubramanian assaulted her at the initial photo shoot at the studio that the photo shoot ended. Her memory was that she was wearing a long black skirt and thought she might have been wearing a purple top. Defence counsel confronted TE with a photo of her wearing a long black skirt and a white blouse which, by the time stamp on the photo, meant it was the last photo taken at the studio that day. TE conceded that she might have been wrong about the colour of her blouse when she was assaulted. But she was certain she was wearing a black skirt and that after the assault the photo shoot ended.

133TE estimated there were about three outfit changes at the initial photo shoot at the studio. Defence counsel confronted her with a series of photographs from the photo shoot that showed there were six outfit changes. TE conceded that there may have been more outfit changes than she recalled. She said she could not recall seeing all the photos defence counsel showed her.

134TE did not recall the names of the venues or exact locations of the photo shoot that took place outside of the photo studio. She recalled the photos taken at the outside venue were taken at a greenhouse. Photos presented by defence counsel and Mr. Sivasubramanian’s testimony show TE posing in what appears to be a greenhouse.

135Supporting the reliability of her evidence is the fact she did recall some surrounding details that were confirmed by Mr. Sivasubramanian’s evidence.

136TE spoke of details about the business premises. TE recalled that the studio was in a plaza. She described a reception desk in the waiting area just inside the entrance to the premises where there were photos situated and photos on the wall. She recalled there was a woman at the reception desk she believed was Mr. Sivasubramanian’s wife. She described a door to the studio area which was entered into from the waiting area. She did not recall the change room or where it was. She estimated the size of the studio area to be somewhat smaller than Mr. Sivasubramanian’s estimate.

137Also similar to Mr. Sivasubramanian, TE remembered that he took photos of her family members before he began the photos shoots of her alone. Like Mr. Sivasubramanian’s evidence, TE remembered the father and children did not remain in the studio room during TE’s photo shoots. They waited in the waiting room. The difference in TE’s and Mr. Sivasubramanian’s evidence, of course, is that he contends the mother remained in the studio while he photographed TE.

138TE recalled the details of the sexual assault. She demonstrated a clear memory that she was alone in the studio with Mr. Sivasubramanian when he assaulted her. She was emphatic that no one from her family, not her mother, was with her at any time when she was being photographed alone.

139TE also recalled, as Mr. Sivasubramanian did, that there was a second round of photographs although their evidence was different as to why there was a second round. She recalled, as did Mr. Sivasubramanian, that shortly after the first session, further photos were taken. TE testified she wore only one outfit during that shoot. Like Mr. Sivasubramanian’s evidence, TE recalled that during that shoot her parents remained in the studio room during the shoot. Her evidence is that Mr. Sivasubramanian did not assault her on that occasion.

Conclusion on TE’s Evidence

140There is no evidence that TE knew Mr. Sivasubramanian before he was retained for her puberty ceremony. There is no evidence of any adverse feelings between them before or after he took the photographs for her puberty ceremony. I can see no reason for TE to fabricate her allegations for reasons of animus.

141TE strongly denied defence counsel’s suggestion that she was influenced to go to the police by Ms. J.S. and her connections to TS and KK. TE asserted she was not friends with TS or KK and while she got strength from Ms. J.S.’s support, her complaint was legitimate and based on her own experience with Mr. Sivasubramanian. I do not accept as a reason to fabricate, the defence’s contention that TE complained to the police just to support Ms. J.S.’s project.

142On the question of tainting of TE’s and TS’s evidence, I see no basis to find that any communication among the women led to a polluting of their evidence. There were notable differences in their descriptions and numbers of incidents of the abuse such that I find the idea of contamination in their evidence has no foundation.

143Furthermore, I see no factual basis for distorted memory. TE was clear and consistent in recounting the details of what Mr. Sivasubramanian had done to her. But more importantly, the defence’s theory of false memory, I find, is more rightfully the preserve of expert opinion given the multi-faceted and complex nature of human memory. Not an area for lay conjecture.

144TE had photo sessions for only one unfortunate ceremonial event to remember and recount at trial. She did not have to sort through other experiences with Mr. Sivasubramanian or other photographers.

145Overall, I found TE to be a sincere and intelligent witness. She did not attempt to hide gaps in her memory about certain details of the photo sessions. TE spoke forthrightly about a very embarrassing experience she had as a young girl as part of a community where discussions of sex and sexual experiences were strictly taboo. TE admitted to extreme naïveté about anything sexual and about not understanding what Mr. Sivasubramanian had done to her but knowing it was wrong. She had no idea he had committed a crime against her until she reached university.

146I believe her delay in disclosing to her parents and the police was due to both her embarrassment and guilt as a young girl about what had happened as well as the result of having no adult with whom to share this very personal and traumatic experience. After all, it was a renowned and much respected photographer in the Tamil community, known for taking the most beautiful photos of young girls for puberty ceremonies, who she would be accusing of such a serious crime.

147I have no basis to doubt the reasons for the delay in disclosing. I find TE’s delay fits the circumstances described by the Supreme Court and other courts. Now an adult, TE’s reaction to her experience must be viewed from the vantage point of her cultural background, her age, maturity and level of emotional development as a young girl. I accept the evidence that TE was a young, immature Tamil girl who lacked knowledge and confidence in the affairs of sex and sexuality who was frightened, guilt-ridden and embarrassed at the prospect of standing up against a prominent man in the Tamil community.

148Looked at in the context of the evidence as a whole, I do not see TE’s delayed response as a factor detracting from her credibility and reliability as a witness. Her delay does not leave me with a reasonable doubt about the trustworthiness of her account.

149As other courts have observed, victims of sexual assault, especially children, more often than not, do not recall peripheral details about their experiences. But this is not necessarily an indicator that they are being dishonest in their account of their experiences. Victims can often describe details of the assault while not recalling some less salient surrounding circumstances. Those factors must be considered with the evidence of young complainants’ testimonies and their evidence about sexual assaults must be assessed in the context of the entirety of the evidence.

150TE did not recall exact dates and times of events or the name or location of where the greenhouse shoot occurred. She did not remember the change room or its location. She did not recall the details of all of her outfits or the number, chronology or duration of the outfit changes.

151TE did not remember the colour of the blouse she was wearing when she was assaulted. She thought it might have been purple. But she recalled she was wearing a long black skirt and that no further photos were taken after the assault. The last photo shows TE in a long black skirt and a white blouse. She accepted she could have been wearing a white blouse.

152But TE did recall she was wearing that long black skirt when Mr. Sivasubramanian pressed his body up against her from behind, placed her hands on his penis, and when she felt his hard penis against her back. TE said her memory is clear that after the initial photo shoot of the family members, none of her family members returned to the studio area. She was alone with Mr. Sivasubramanian. Her mother was not there. TE was unrelenting under cross-examination on the details of the assault. She emphasized that she has never forgotten what happened to her.

153Viewed in the totality of the evidence, I do not find TE’s failure to recall certain of the less salient details over a 17-year period raises a reasonable doubt about the credibility and reliability of her evidence.

154TE did not have a completely blank memory about the surrounding circumstances. Many of her memories are similar to those of Mr. Sivasubramanian. This, I find, enhances the credibility and reliability of her account.

155TE recalled that the business premises were in a plaza. She recalled the layout of the waiting room and that his wife was at the reception desk and that there was an initial shoot with the family, and that the father and her siblings remained in the waiting room during the shoot. She recalled some of the contents of the studio and that a shoot was taken at a greenhouse. This lends reliability to her evidence.

Determination on TS’s Allegations

Summary of TS’s Evidence

156TS, now age 31, alleges that Mr. Sivasubramanian sexually assaulted her 17 years ago in 2001 when she was 14 years old. She recalled she had her first menstrual cycle in January 2001. She made the complaint to the police in 2015 some 14 years after the encounter with Mr. Sivasubramanian at his studio.

157TS alleged that Mr. Sivasubramanian sexually assaulted her several times during the photo shoot in his studio. She did not recall how many times.

158TS had difficulty recalling details like times, names of the outside venues and the exact dates of photo shoots. She could not recall photos being taken at a park. She explained her family never received those photos. TS did not recall all of her outfits or changes in outfits.

159The first acts of abuse TS said she clearly recalled, the cupping and massaging of her breasts and pressing his erect penis against her, were committed while she was wearing the half-sari. She did not recall what she was wearing during other acts of abuse including when he spread her legs and ran his hands up her thighs and over her vagina. TS stated without reservation that those were the acts of abuse she experienced.

160TS recalled that her aunt and mother remained in the change room to assist her with outfit changes. According to TS, neither they nor any other family members came into the studio area during the photo shoot. She was alone with Mr. Sivasubramanian when he assaulted her.

161TS did not completely forget the circumstances surrounding her experience at the studio. Mr. Sivasubramanian and TS gave some evidence in common. I find this enhances the credibility and reliability of her evidence.

162TS recalled the studio was in a plaza. Like Mr. Sivasubramanian, TS recalled that TS’s aunt, parents and two siblings came to the studio with TS. Their evidence is also in basic accord about the layout of the waiting room and that his wife was at the reception desk and his two children were present at the premises.

163TS and Mr. Sivasubramanian both gave evidence that family photos were taken and that the father and TS’s siblings left the studio after the photos were taken. Their evidence was similar about the contents of the studio. They both recalled Mr. Sivasubramanian’s wife entering the studio during the shoot.

164TS and Mr. Sivasubramanian both testified there were photo shoots outside the studio. TS recalled, as Mr. Sivasubramanian did, a photo shoot at a greenhouse but she did not recall a session at a park although she agreed from the photos defence counsel showed her that there must have been a session at a park. She said she had never seen those photos before trial.

165Mr. Sivasubramanian and TS both gave evidence that Mr. Sivasubramanian called TS’s father to inform him that he had lost the photos of the first session. He requested that the photos be taken again which did occur shortly after the first session. TS believed the greenhouse photos were taken during the second round of photographs and that a further second session was taken at the studio. She thought the park photos were taken before the first session.

166TS testified that Mr. Sivasubramanian committed the same acts against her during the second session at the studio. Unlike Mr. Sivasubramanian, TS testified her aunt and mother remained in the change room as they did during the first session. TS’s evidence is that during one of the outfit changes after Mr. Sivasubramanian had assaulted her, she told her aunt and mother she did not want to continue. TS said her aunt went into the studio with her to watch the shoot, but according to TS, she knocked over equipment and Mr. Sivasubramanian asked her to leave the studio area. This, Mr. Sivasubramanian denied.

167TS did not recall on cross-examination all of the outfits she wore during the studio photo shoots. She did not recall whether Mr. Sivasubramanian assaulted her before she wore the half-sari. But pointed out that the first touch she recalled was when she was wearing the half-sari. She did not recall the durations of the shoots of each outfit, nor the durations of the outfit changes. TS thought the photo sessions happened in the summer in July or August 2001. She accepted defence counsel’s suggestion based on the time stamps on photo contact sheets that the sessions occurred in mid-September.

Conclusion on TS’s Evidence

168I found TS to be an intelligent and articulate young woman who tried her best to tell the court about a harrowing experience she had as young girl at the hands of a respected member of the Tamil community. TS had only to recall one regrettable set of photo sessions in relation to one event in her life. Fortunately, she did not have to sort through the details of numerous photo events with Mr. Sivasubramanian or other photographers. TS presented as a forthright and honest witness who admitted areas of the evidence where her memory was weak.

169Defence counsel suggested that TS was influenced by Ms. J.S. and TE to make a complaint against Mr. Sivasubramanian. This in the defence’s view was a reason for TS to fabricate. Defence counsel alluded to the fact that they went to the same high school and university at the same time. TS rejected that suggestion and indicated that she was only acquaintances not friends with TE and Ms. J.S. and did not discuss the details of her experience with them before she went to the police.

170As with TE, the defence’s theory is that TS’s evidence was somehow tainted by her communications with TE and Ms. J.S. which distorted her memory of the photo sessions with Mr. Sivasubramanian resulting in her having false memories of her experience.

171I find that any acquaintance or communication between the three women resulted at most in an opportunity to collude. I heard no evidence that TE’s and TS’s trial evidence was tainted in any way. In fact their evidence about the assaults was sufficiently dissimilar as to belie any notion of tainted evidence.

172As well, I do not accept the defence’s argument about distortion and false memory. I find no evidence of any distortion in TS’s evidence about the assaults. She gave consistently clear details about the sexual assaults. Again, there is no expert opinion to support the defence’s theory.

173There is no evidence that TS knew Mr. Sivasubramanian before he was retained for her puberty ceremony. There is no evidence of any adverse feelings between them before or after he took the photographs for her puberty ceremony. I can see no reason for TS to fabricate her allegations on the basis of a bad relationship. From another perspective, it also strikes me that there is no basis in the evidence to conclude that TE and TS had a shared amimus towards Mr. Sivasubramanian subsequent to their abuse such as would give them a common interest after the passage of 17 years to secretly concoct and fabricate allegations against him.

174I found TS’s reaction to her experience accords with the observations other courts have made about young victims of sexual assault. In examining her evidence regard has to be had to her culture, her age, and her level of maturity and emotional development at the time of the abuse.

175TS did not recall some of the surrounding details of her photo sessions. She did not recall the session in the park. She did not recall the number of times she was assaulted or number and types of the outfits she wore. But she did recall the half-sari she was wearing when he first touched her.

176TS’s failure to recall some details in the context of the evidence as a whole, I do not find undermines her evidence such as to raise doubt about the credibility and reliability of her evidence.

177TS testified that she lacked the words to tell her parents what Mr. Sivasubramanian had done to her. She did not want to disappoint them. She was able to disclose to her sister at age 16. Later in 2013 in university TS disclosed the abuse to Ms. J.S., who had herself been a victim of sexual abuse. TS testified about seeing Mr. Sivasubramanian at a wedding anniversary celebration in September 2015 before she went to the police. Around that time, TS’s sister went to the police about TS’s experience and encouraged her to go as well.

178I do not find the fact of TS’s delay in disclosing to the police to be a detracting factor in assessing her credibility. I find it credible that it was through encouragement by Ms. J.S. and her sister that TS developed the courage to go to the police in October 2015. This does not cause me to doubt TS’s motives.

179TS’s delay in going to the police does not leave me with a reasonable doubt about the credibility and reliability of her account of her experience.

Analysis of Mr. Sivasubramanian’s Evidence

General

180This is a “he-say-she-say” case of accusations by two women, complainants with complaints dealt with separately on one side, and flat denials by the accused on the other side. Mr. Sivasubramanian has flatly denied the allegations of the complainants. These are never easy cases to decide.

181Courts have commented on the application of R. v. W. (D.) to flat denials by an accused.

An accused is entitled to flatly deny accusations and not be subjected to adverse findings because of this. It is an error to reject defence evidence only on the basis it was a flat denial. Frequently a flat denial is the only available defence for the accused. All they can say is they did not do it. The accused's evidence must be analyzed in the context of the evidence as a whole: [R. v. C. (R.H.), 1996 821; (1996),104 C.C.C. (3d) 413 (Ont. C.A.) and; R. v. Kumric [2006] CarswellOnt 7728 (Ont. S.C.J.)], 2006 40997, at paras. 18-20](https://www.canlii.org/en/on/onsc/doc/2006/2006canlii40997/2006canlii40997.html). It is a mistake to reject the defence evidence and find it does not raise a reasonable doubt for the simple reason the trier of fact believes the Crown witness, without any analysis of the defence evidence. To make this error is to run afoul of R. v. W. (D.). A trier of fact has to examine all of the evidence. Where credibility is in issue courts should apply the criteria in R. v. W. (D.):

[R. v. D. (S.), 2004 31872 (ON CA), [2004] CarswellOnt 2123 (Ont. C. A.)]; 2004 31872, at paras. 29 − 30, (Ont. C. A.)]

Ignorance of Meaning of Puberty Ceremonies

182I considered Mr. Sivasubramanian’s evidence in the context of the evidence as a whole. For the following reasons, I do not have a reasonable doubt about his guilt of the sexual offences against TE and TS.

183I was first struck by Mr. Sivasubramanian’s testimony on cross-examination when he was questioned about his knowledge of puberty celebrations.

184Mr. Sivasubramanian is a 59 year old educated man. He studied accounting in Sri Lanka and engineering at a university in India. He has been a practising Hindu and has attended Temple throughout his life. He had practised Hinduism for 32 years in Sri Lanka and India before he came to Canada. He has made a lucrative living for over 20 years through his business taking photographs of events in the Tamil community in Canada. Among the events he photographed most frequently were puberty ceremonies for young girls.

185Mr. Sivasubramanian professed what I saw as surprising ignorance about the significance of puberty ceremonies and the rituals practised during the ceremony. This is despite his evidence that some 30 − 40 percent of his business involved photography of these ceremonies. His evidence was that on average he photographed approximately 30 – 40 puberty ceremonies per year from 1999 to 2015. His professed ignorance is also in spite of his personal experience with hosting his own daughter’s ceremony at their home and his own observance of the Hindu religion over his lifetime.

186Mr. Sivasubramanian appeared as an intelligent man who on a whole had no difficulty understanding questions and giving answers through the assistance of Tamil interpreters. The few interpretation issues that did arise during his testimony were remedied to Mr. Sivasubramanian’s satisfaction, including discharging one of the three interpreters retained for his trial. Mr. Sivasubramanian presented as an astute and prosperous businessman who quickly after immigrating to Canada launched what for all appearances seemed to be a respectable photography business.

187Mr. Sivasubramanian’s evidence was that he had little knowledge about, for instance, the ritual of relatives pouring milk and grass over the celebrant’s head. Mr. Sivasubramanian had little to say to Crown counsel’s suggestion that the purpose of the ritual was to cleanse the young girl because women on their menstrual cycle are considered unclean. In relation to questions about his daughter’s ceremony he responded, “There is no need to know these things.”

188I find Mr. Sivasubramanian’s evidence in this area strains credulity. Common sense tells me it is not believable that Mr. Sivasubramanian would not know about the significance of a Hindu ceremony being an observant Hindu and having been involved with those ceremonies professionally for many years. The question then is why would Mr. Sivasubramanian be untruthful about this?

189Only Mr. Sivasubramanian knows this for sure. However, it seems to me that what he attempted to create is some distance from knowledge about a ceremony the connection with which has put him in jeopardy with the criminal justice system. In light of the nature of the charges against him perhaps it would make him uneasy to testify to knowing about the vulnerability, shyness and sensitivity of young girls at this time in their lives and how uncomfortable the idea of the ceremony is for the girls. The complainants testified about this and Mr. Sivasubramanian in a way alluded to this when he spoke of the uncooperativeness of 75 percent of the girls he photographed.

190Whatever Mr. Sivasubramanian’s reason was for denying knowledge about the ceremony, I find his credibility was undermined by his responses to those questions by Crown counsel.

Opportunity to Commit the Sexual Assaults

191Mr. Sivasubramanian testified about taking photographs at the puberty celebrations at the celebrants’ homes where family members were present. Relatives like mothers and aunts and female make-up artists would be present. Mr. Sivasubramanian testified that when aunts, mothers and make-up artists are present they assist the girl with her outfits, makeup and jewelry. He testified his practice was that during the poses he would ask the girls to do a pose and show them by demonstrating the pose himself.

192But importantly, Mr. Sivasubramanian testified that if there were female relatives or other female assistants present at photo sessions, and the girl had difficulty with a pose, he would ask the women to physically help with the poses by adjusting the girl’s body. His evidence was that he would not have to physically guide the girls’ poses in those circumstances.

193That practice seems contrary to what Mr. Sivasubramanian testified to having done during TE’s and TS’s sessions at the studio. It was his evidence that the aunts and/or mothers were present during the shoots in the studio. His evidence is that in spite of their presence he physically adjusted the girls himself. He admitted to touching parts of their bodies to achieve certain poses. He did not ask the aunts or mothers to assist with posing. One exception, according to Mr. Sivasubramanian’s evidence, was when he says he asked TS’s aunt to assist with adjusting TS’s skirt for a pose on the studio floor. TS denied this happened because neither her mother nor aunt was ever present during the shoots of her alone.

194Mr. Sivasubramanian did not explain why he did not seek the assistance of the aunts and mothers if they were present during the sessions as he asserts. This casts considerable doubt on Mr. Sivasubramanian’s evidence about not being alone with the girls.

195Looking at the entirety of the evidence, I considered Mr. Sivasubramanian’s evidence in this area, together with what I regarded as the credible evidence of TE and TS, and I am persuaded that the mothers and aunts were not present in the studio for the shoots. This gave Mr. Sivasubramanian the opportunity to commit the sexual assaults outside the watchful eyes of family members.

Extraordinary Memory of Minute Details

General Impression

196I found Mr. Sivasubramanian had an extraordinarily detailed memory of the photography sessions with TE and TS given that he was looking back 17 years of photographing ceremonies. As noted earlier, he averaged 30 – 40 puberty ceremonies per year from 1999 to 2015. That amounts to about 510 to 680 puberty ceremonies over the entire period. He also photographed a multitude of other types of ceremonies over that period. Mr. Sivasubramanian testified that when he first saw the girls’ names on Facebook in relation to the allegations he did not recognize them. But he said he did recall them after he reviewed his computer records of the images of the photo shoots.

197Mr. Sivasubramanian pointed out that he has had subsequent connections with TE’s family through photographing subsequent family events and that he is from the same village in Sri Lanka and is related through marriage to members of TS’s family. Mr. Sivasubramanian however did not explain how those connections with members of TE’s and TS’s families could enhance his memory of intricate details of photo shoots he did amongst a multitude of others, 17 years ago.

198From another perspective, I looked at Mr. Sivasubramanian’s evidence of not knowing who the girls were when he first heard the allegations and that after he saw their names on Facebook he had to search his records to recall them. This seems at odds with his evidence that he had continued contact after the puberty ceremonies with their families. He also said after the photo shoots he displayed TE’s photographs in his studio. This causes me to wonder why Mr. Sivasubramanian did not recognize the girls’ names or who they were until he looked into his computer records.

The Photo Sessions with TE

199Mr. Sivasubramanian opened his testimony about TE by stating that he did not recall very well the photo shoot of TE at the studio. But he went on to recount the smallest of details.

200Mr. Sivasubramanian recalled that after the family photos were taken, the mother and TE’s siblings remained in the studio. Contrary to TE’s evidence, his testimony was that the mother remained during the full session while the children went in and out. The father stayed out of the studio during the session. He recalled where the mother was standing with one of the other children in the studio near the table in the room and that she was unpacking outfits on the table.

201Mr. Sivasubramanian remembered leaving the studio room after the first set of shots and that the mother stayed to assist with the outfit changes. He also specifically remembered TE and the mother used the mirror in the studio room to adjust TE’s outfit. He also recalled the small detail that one of TE’s siblings came out of the studio to let him know TE was ready for the next shoot. Mr. Sivasubramanian recalled that after the studio session the mother and TE remained in the studio and folded and packed up the outfits.

202Mr. Sivasubramanian described TE as behaving exceptionally as far as cooperation is concerned. His evidence that 75 percent of the girls were uncooperative means his recollection of TE was that she was an exceptional puberty celebrant. He recalled that she appeared “normal and happy” and had no difficulty posing and smiling for the photos when he requested.

The Photo Sessions with TS

203Contrary to TS’s description of the layout of the studio area that the change room was a separate room at the end of a hallway, Mr. Sivasubramanian’s evidence was that the change room was a room located inside the studio area with a separate door. This means according to his evidence that the aunt and mother could easily see what was happening during the photo session. Mr. Sivasubramanian recalled the detail that the mother and aunt remained in the studio for the photo session and went in and out of the change room to assist with changes. Mr. Sivasubramanian remembered that he left the studio room between outfit changes.

204Mr. Sivasubramanian recalled that when he asked TS to pose she would not cooperate. When he had to adjust her physically she resisted his guidance. He recalled taking the photos very quickly, at the rate of one photo per minute. He also recalled he did not change the background as he usually did. Mr. Sivasubramanian says he recalls he did this because TS was so surly and uncooperative with him. It would seem that Mr. Sivasubramanian’s experience with TS’s uncooperativeness should not stand out in his memory for that reason from the many other sessions with puberty celebrants since according to him 75 percent were uncooperative.

205Mr. Sivasubramanian recalled specific poses and outfits. He recalled the detail of having to adjust the top of her half-sari requiring him to touch her mid-section to adjust it. He also remembered a pose where TS was required to sit on the floor. Mr. Sivasubramanian recalled the details of him asking the aunt to adjust the back of her skirt while he adjusted the front. He remembered that the aunt did not do it properly and he had to readjust the back. Mr. Sivasubramanian testified he did not recall touching TS’s legs or his hands or coming close to her vagina. He testified he was taking photos too quickly to allow him to press his body against hers.

206As noted earlier, Mr. Sivasubramanian contends his memory of TE and TS was assisted by his contact with their families after the families hired him for their puberty ceremonies. He did not explain how that could be. So without more evidence I cannot see how Mr. Sivasubramanian’s connection with the families after he photographed the puberty ceremonies would help him recall the minute details of photo shoots 17 years ago.

207I believe Mr. Sivasubramanian simply created false scenarios about what happened during the photo shoots with TE and TS, scenarios fabricated to point away from the opportunity to assault the girls.

CONCLUSION

208Mr. Sivasubramanian is charged with both sexual assault and invitation to sexual touching in relation to both complainants. In relation to TS, Mr. Sivasubramanian is charged on count 3 (sexual assault), on count 4 (invitation to sexual touching) on count 5 (sexual assault) and on count 6 (invitation to sexual touching). In relation to TE, he is charged on count 7 (sexual assault) and on count 8 (invitation to sexual touching).

209Sexual assault under s. 271(1) of the Criminal Code is an act in which a person intentionally sexually touches another person without that person’s consent, or coerces or physically forces a person to engage in a sexual act against their will.

210Invitation to sexual touching under s. 151 of the Criminal Code involves inviting, counselling or inciting a person under the age of 16 years to touch, directly or indirectly, with a part of his or her body or with an object the body of any other person including the person under the age of 16 years.

211Both TE and TS were under the age of 16 years at the time the offences were committed.

212TE’s allegation is that Mr. Sivasubramanian stood behind her and pressed his erect penis against her over her clothes, placed her hands on his erect penis, and put his hands down her skirt and placed his fingers into her vagina.

213TS’s allegation is that Mr. Sivasubramanian placed his hand under the shawl over her blouse and cupped and massaged her breasts. He leaned his body against hers and she could feel his erect penis against her body. He also spread her legs apart holding her ankles and ran his hands over her inner thighs and over her vagina on top of her clothes. He committed those acts on several occasions.

214Defence counsel argues that the only reason Mr. Sivasubramanian touched the girls physically was for the innocent purpose of guiding them in a pose or adjusting their outfits. I find however that the acts described by the complainants were not situations where it can be fairly concluded that Mr. Sivasubramanian just touched the girls’ bodies for those reasons. I find Mr. Sivasubramanian’s actions in relation to both complainants satisfy the essential elements of sexual assault and invitation to sexual touching.

215No singular problem with Mr. Sivasubramanian’s evidence satisfied me of his guilt. I find the totality of the problems with his evidence, together with what I have concluded is the trustworthy and credible evidence of TS and TE, persuaded me of Mr. Sivasubramanian’s guilt beyond a reasonable doubt. Nothing in the evidence leaves me with a reasonable doubt about this.

VERDICT

216I find Sinnarajah Sivasubramanian not guilty on count 1 and count 2 on the indictment and acquittals will be entered accordingly.

217I find Sinnarajah Sivasubramanian guilty count 3, count 4, count 5, count 6, count 7 and count 8 on the indictment and convictions will be entered accordingly.