Court File and Parties

Court File No.: CR-18-50000021-00AP Date: 2019-04-08 Superior Court of Justice – Ontario

Re: R. v. Seyenthan Sivakumaran

Before: M.A. Code J.

Counsel: Neville Golwalla, for the Crown Jeffrie Shulman, for the Appellant

Heard: March 27, 2019

Endorsement

[1] The Appellant Seyenthan Sivakumaran was convicted of sexual assault by DiZio J. after a short trial in the Ontario Court of Justice. The Crown proceeded summarily, all of the evidence was heard in one day, submissions were made on a second day, and after reserving judgement DiZio J. gave oral Reasons for conviction on November 20, 2017. The Appellant received a one year conditional sentence and 18 months probation. He appealed to this Court against conviction only. He has completed the conditional sentence and is currently on probation.

[2] On behalf of the Appellant, Mr. Shulman submits that the trial judge misapprehended various aspects of the evidence and engaged in speculation in relation to other aspects of the evidence. These errors are said to have led the trial judge to wrongly reject the Appellant’s account and accept the complainant’s account of the relevant events. See: R. v. Morrissey (1995), 1995 3498 (ON CA) , 97 C.C.C. (3d) 193 (Ont. C.A.); R. v. Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732; R. v. MacIsaac, 2015 ONCA 587.

[3] By way of background, this was a relatively straightforward case with a single issue at its core, namely, the credibility and reliability of the two accounts of the relevant incident. The complainant’s account described a physical assault by the Appellant, followed by a sexual assault. She testified that she was a sex trade worker and that the Appellant was her client. When she insisted on payment in advance, he threw her to the floor of her hotel room, pulled out his penis, and demanded oral sex prior to any payment, while restraining her and hitting her head against the wall. She cried out for help, called the 911 operator on her cell phone, and the Appellant fled from the room. The Appellant’s account was one of complete innocence, denying any such assaults. He testified that he entered the complainant’s hotel room and quickly saw that the woman in the room was not the particular sex trade worker who he was expecting, based on past engagements. When he explained that he was leaving, she blocked his exit from the room, punched him in the face and forehead, and called 911. He succeeded in leaving the room by forcing open the door. This may have caused some incidental contact with the complainant as she was moved aside when he opened the door.

[4] If the complainant’s account was credible and reliable, there was little question that the Appellant was guilty as charged. On the other hand, if the Appellant’s account raised a reasonable doubt, there was no question that he was not guilty. There were no complicating issues such as identification, consent, honest belief in consent, or self-defence. In other words, it was a case that turned solely on the approach set out in R. v. W.(D.), 1991 93 (SCC) , [1991] 1 S.C.R. 742, concerning the burden of proof and its application to the issue of credibility and reliability when there are two opposing accounts.

[5] In determining this relatively straight forward central issue in the case, it should also be noted that there were some difficulties with the Appellant’s version of events. He was much bigger than the complainant, weighing about 220 pounds and standing 5’9” tall, while she weighed 100 pounds and stood 5’ tall. She had visible injuries, albeit relatively minor ones that were photographed by the police and that the accused had some difficulty explaining. He had no injuries, in spite of claiming that she punched him in the face and forehead. In addition, she called the 911 operator while he was still in the room. The tape of her call was played at the trial. He fled from the hotel by a route that avoided the front desk. Although she was initially reluctant to cooperate with the police, she eventually gave her account in a generally consistent manner in a third call to the 911 operator. He admittedly lied in his statement to the police, which was recorded and played in evidence at the trial.

[6] In short oral reasons, the trial judge applied the burden of proof in the manner set out in R. v. W.(D.), supra. He stated at the end of his Reasons that the Appellant’s account was not “compelling”, that “his version does not seem reasonable in the circumstances of this case”, and that the complainant’s account “appeared honest and truthful and her story made sense and it was supported by her physical injuries”. In all the circumstances, the trial judge was “not left in a state of doubt as to what happened”. He concluded that “the evidence convinces me beyond a reasonable doubt that there was a non-consensual sexual encounter on the night in question”. As a result, he convicted the Appellant.

[7] The trial judge’s credibility findings are entitled to significant deference on appeal, unless they “cannot be supported on any reasonable view of the evidence”. See: R. v. R.A. (2017), 2017 ONCA 714 , 355 C.C.C. (3d) 400 at para 44 (Ont. C.A.). Mr. Shulman does not submit that the trial judge’s credibility findings are unreasonable, nor does he submit that the W.D. approach to credibility and the burden of proof was misapplied. Rather, he raises a number of alleged factual errors in the trial judge’s Reasons that led to erroneous conclusions concerning credibility.

[8] To put the alleged factual errors in context, the structure of the trial judge’s Reasons was to first summarize the accounts of the Appellant and the complainant, as well as the tape of the first 911 call. He went on to summarize defence counsel’s main submissions. The core of his analysis was then set out, which I read as eight separate reasons or circumstances that led the trial judge to his conclusions concerning credibility. These eight circumstances or reasons, some of which contain the alleged factual errors, were as follows:

• first, the trial judge thought that the Appellant’s account of the complainant blocking his exit at the door to the hotel room, while calling 911 at the same time, was improbable;
• second, the trial judge noted certain improbabilities in the Appellant’s account as to how the door to the hotel room came to be latched on the inside, and who had latched it;
• third, the trial judge noted the substantial difference in size between the Appellant and the complainant, as well as the relatively small space at the door to the hotel room. He questioned how the much smaller complainant could block the Appellant from exiting while also latching the door, as the Appellant had suggested in his testimony. These first three circumstances set out above are all factually related and they caused the trial judge to conclude that the Appellant’s version of what happened at the door, as he was trying to leave, “does not work” and that there was “more than he was willing to admit”;
• fourth, the trial judge rejected the Appellant’s account concerning a laptop computer with a camera that he claimed to have seen on the bed, and that the complainant allegedly referred to as the Appellant was trying to leave (the police photographs of the room showed no such laptop computer);
• fifth, the trial judge referred to certain details in the complainant’s account of the alleged sexual assault, as well as a lack of detail in certain other parts of her account, and assessed how these circumstances related to her credibility;
• sixth, the trial judge referred to the complainant’s injuries, as depicted in the police photographs, noting that “they are on both sides of her body, including a scratch”, and doubted whether they were consistent with the Appellant’s account;
• seventh, the trial judge addressed the defence submission that the complainant had “concocted the story” after calling 911 and realizing that the police were coming to the hotel. He rejected the theory of concoction for reasons that I will address below; and
• eighth, the trial judge briefly referred to the complainant’s demeanour as a witness, stating that she “appeared honest and truthful”, while also noting that “her story made sense and it was supported by her physical injuries”.

[9] As I understood Mr. Shulman’s oral argument, there were six distinct errors in the trial judge’s reasoning. In my view, none of these errors have been made out.

[10] The first alleged error was that the trial judge summarized the Appellant’s evidence early in his Reasons and stated: “He said he did not lay a hand on her and did not do anything to her when she was trying to hit him”. Later in his Reasons, the trial judge noted: “Counsel submitted that nothing happened and that the complainant concocted the story…” Mr. Shulman submitted that these two references unfairly and inaccurately omitted the defence position that there was, in fact, some contact between the complainant and the Appellant at the door and that the tape of the first 911 call clearly indicated that there was some kind of commotion as the Appellant left the hotel room. By omitting or overlooking this evidence of some contact or commotion, the trial judge left the erroneous impression that the Appellant could not explain the complainant’s injuries. I disagree. The trial judge explicitly set out the Appellant’s evidence, that “He moved her out of the way” at the door as the Appellant was leaving the hotel room. This was the only physical contact that the Appellant ever acknowledged in his testimony. Otherwise, he insisted that he “didn’t touch her” and, most importantly, he asserted that “I never scratched her or anything like that”. The trial judge also summarized the first 911 call, expressly stating that “some of the commotion is caught on this 911 call”. In other words, the trial judge did refer to the two items of allegedly omitted evidence. Finally, defence counsel at trial (not Mr. Shulman) did make a submission to the effect that “nothing happened”, stating:

“But here, nothing happened because nothing did happen. The only thing that happened was that my client wanted to leave, she blocked the doorway, and he moved her and he got out”.

[11] In all these circumstances, I am satisfied that the trial judge did not misapprehend the evidence or the defence position in the way suggested. He understood that the defence acknowledged some incidental contact at the door and he understood that the 911 tape indicated some commotion, but that the defence version of events was that the Appellant had done nothing untoward. The important point about the above summarized defence position was that it arguably failed to explain the injuries “on both sides of her body, including a scratch”, as the trial judge noted.

[12] The second alleged error concerns the first three circumstances in the trial judge’s analysis, already summarized above. These three circumstances concerned the complainant’s small size and the small space inside the door to the hotel room, and the improbability of the complainant being able to block the much larger Appellant’s exit, latch the door, and call 911 in these circumstances. Once again, Mr. Shulman submits that this part of the trial judge’s reasoning unfairly omits any reference to the tape of the first 911 call, which infers that there was some kind of commotion going on around the door to the hotel room, and infers that the commotion continued for some 25 seconds before the Appellant finally managed to exit the room (according to the defence interpretation of the 911 tape).

[13] I listened to the tape of the 911 call a number of times during oral argument, in order to appreciate Mr. Shulman’s point. In my view, the tape is ambiguous, at best, in relation to these issues. The tape of the first 911 call begins at a point where the operator comes on the line and it is the Appellant who can be heard saying something in a deep muffled voice. The complainant then screams something in a loud voice. The complainant goes on to say, “you’re putting your hands on me, stupid shit”. There is then a short period of silence. Finally, the complainant says “he’s at the elevator” and “he got away”. None of this is helpful to the defence, in my view, because the timing and content of the events on the tape are more consistent with commotion during the alleged sexual assault, when the Appellant was holding the complainant and yelling at her, followed by the Appellant’s flight from the hotel room after the complainant had screamed. As previously noted, the trial judge appreciated that the tape of the first 911 call captured “some of the commotion”. However, it is open to serious question whether the “commotion” captured on the tape occurred at the door (as the defence alleges). It is more likely that the “commotion” occurred during the sexual assault (as the Crown alleges) and was then followed by a period of silence when the Appellant appears to have fled from the hotel room. I am not satisfied that the trial judge made any error in failing to refer to the tape of the 911 call, when discussing his first three circumstances concerning the events at the door. It was ambiguous, at best, as to whether the tape indicated commotion at the door while the Appellant was exiting.

[14] The third alleged error is that the trial judge failed to mention another aspect of the first 911 call, namely, the fact that the complainant failed to say anything about a sexual assault during this initial call to the police. In other words, she failed to make a timely complaint. This point can be easily disposed of. As a factual matter, the initial 911 call was undoubtedly a call for help. It infers that there was some kind of danger or emergency and that the complainant needed help. Furthermore, the trial judge appreciated that the complainant appeared to have given up and ended the initial 911 call, once the Appellant “got away” at the elevators, as she put it. The trial judge expressly referred to the complainant’s conduct towards the end of the first call and during the second call as follows: “She is uncooperative with the 911 operator… she tells the operator ‘nothing happened, I do not need you’”. It is only in the third 911 call that the complainant referred to the sexual assault and gave a detailed account of the alleged event. I am satisfied that the trial judge appreciated the evidence on this point as he referred to her as “uncooperative” prior to the third call. In any event, the complainant’s failure to make a timely complaint of sexual assault in the first 911 call is of limited value in modern evidence law. See: R. v. D.D. (2000), 2000 SCC 43 , 148 C.C.C. (3d) 41 (S.C.C.).

[15] The fourth error is that the trial judge failed to note certain alleged frailties in the evidence concerning the complainant’s injuries. Mr. Shulman submitted that there was no confirmation that the complainant had a bump on her head, as she claimed in her testimony, and no evidence of any injuries to her chest or neck area where the Appellant was allegedly applying pressure during the sexual assault. There was no medical examination of the complainant because her injuries were minor. Officer Santarelli testified that he observed visible injuries to both of her arms and one shoulder and he had them photographed. The complainant advised him “of soreness to the side of her head” but he did not examine this area, which was presumably covered by her full head of hair. As to the pressure to her chest or neck area, it was never suggested by the complainant that this had caused any injury. I am sure the trial judge appreciated that there was no corroboration of the alleged bump on the head, as this was self-evident from the above evidence. The key point about the visible injuries, as the trial judge noted, was that they were “on both sides of her body, including a scratch”. The Appellant’s evidence arguably did not account for these visible injuries. In my view, there was no need to refer to the evidence about any non-visible bump on the complainant’s head, and the trial judge made no reference to it one way or the other.

[16] The fifth alleged error concerns the defence theory of “concoction”, which was the seventh circumstance in the trial judge’s analysis (as summarized above). The defence squarely confronted the complainant in cross-examination with its theory of “concoction”, and then pursued the issue in closing argument. The defence position, in this regard, was and remains that the complainant “concocted” her allegations in between the second and third 911 calls, once she realized that the police were coming to the hotel. The alleged motive for making up a false story about sexual assault at this point was fear that the Appellant would report the complainant to the police, presumably for having assaulted and forcibly confined him in the hotel room. There were significant frailties in this theory of motive, given that the complainant was the one who had already called 911 and sought help from the police, prior to any alleged concoction. Furthermore, the Appellant fled from the hotel and then lied to the police about meeting a woman from work at the hotel, and did not allege any assault or forcible confinement by the complainant.

[17] Mr. Shulman submitted that the trial judge reversed the burden of proof and engaged in speculation, in rejecting the defence theory of “concoction”. I do not agree. The trial judge never required the defence to explain why the complainant would lie, let alone suggested any burden on the defence. Rather it was the defence who had squarely raised and relied on this issue. The trial judge was obliged to address it. Furthermore, the trial judge did not resort to speculation. The only evidence supporting the defence theory of “concoction”, aside from the Appellant’s denial of any sexual assault, was the complainant’s initial refusal to cooperate with the 911 operator during the first and second 911 calls, after the Appellant had “got away” at the elevators, as she put it during the first 911 call. The complainant explained this initial hesitation on her part, both in-chief and later in cross-examination when she was confronted with the defence theory of “concoction”. She testified that she had a prior relationship with the hotel, working there as an escort, and that she did not want to jeopardize that relationship by causing “drama in the hotel”. The trial judge accepted this explanation, stating “she did not want the exposure of publicity that police involvement would bring and she wanted the end of it”. The trial judge was entitled to accept this explanation and find that “concocting a story would have been against her self-interest”. Indeed, the complainant’s concerns appeared to be legitimate. She testified that, “after that incident I was kicked out of the hotel… That’s why I was very reluctant to cooperate in the beginning… I worked at that hotel prior to the incident, being known as a very quiet person. I’ve never had an issue with them, so I just didn’t want there to be a scene with a bunch of cops”.

[18] In my view, there was evidence in the record in relation to the theory of “concoction”, and whether the complainant did or did not have any self-interest in reporting the alleged sexual assault to the police. It was not speculation to address this issue, to accept the complainant’s evidence on the point, and to find that it was in her self-interest not to involve the police.

[19] The sixth and last alleged error was that the trial judge unduly relied on the complainant’s demeanour as a witness. Mr. Shulman did not press this point. The trial judge only briefly made an apparent reference to demeanour, stating towards the end of his Reasons that the complainant “appeared honest and truthful”. This one isolated mention of demeanour was preceded and followed by a large number of other reasons for believing the complainant and disbelieving the Appellant. A witness’ demeanour is a relevant consideration, when assessing credibility. Judicial experience is that it should not be given undue weight and it should not be the sole or main consideration in an assessment of credibility. There is nothing in this case that resembles those cases where demeanour has been unduly relied on. See: R. v. Gostick (1999), 1999 3125 (ON CA) , 137 C.C.C. (3d) 53 (Ont. C.A.); R. v. Rhayel (2015), 2015 ONCA 377 , 324 C.C.C. (3d) 362 at paras. 84-94 (Ont. C.A.).

[20] For all these reasons, the appeal against conviction is dismissed.

M.A. Code J.

Date: April 8, 2019