COURT FILE NO.: CR-19-300000341

DATE: 20210512

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KATHIRGAMANATHAN SUPPIAH

Counsel: Rosemarie Juginovic and Alex Penny for the Crown Monte MacGregor and Amanda Warth for Kathirgamanathan Suppiah

HEARD: March 29, 2021

Supplementary Reasons re Admissibility of Hearsay

MacDonnell, J

1On the defendant’s trial for the second degree murder of his wife Jayanthy Seevaratnam (“Jayanthy”), the Crown proposed to adduce evidence concerning his attitude toward and treatment of her over the course of their marriage. The bulk of this evidence was based on direct observation, but some of it was based on statements that the deceased was alleged to have made to her daughter Sophia Nathan and her sister Tharsika Seevaratnam.

2The proposal of the Crown to adduce the prior history evidence engaged two exclusionary rules of evidence. The first was that evidence of a defendant’s discreditable conduct that is beyond the conduct alleged in the indictment and that does no more than to portray the defendant as a person of bad character is inadmissible. The second, which was only engaged by some of the evidence relied on by the Crown, was that hearsay evidence is presumptively inadmissible. Because the trial was proceeding without a jury, the parties agreed to have all of the evidence pertaining to the history of the marriage, both the hearsay and the non-hearsay, adduced tentatively as part of the trial and to argue admissibility at the conclusion of the Crown’s case.

3On March 30, 2021, after hearing from the parties, I delivered oral reasons for my ruling with respect to the admissibility of the prior conduct evidence. Except for one aspect of the hearsay issue, the oral reasons fairly captured and explained the basis for the admissibility decisions. The one matter with respect to which I indicated that I would provide expanded reasons was the basis for admitting some of the hearsay. These are those expanded reasons.

4The issue arose in the following context. As I have said, some of the prior history evidence consisted of ante-mortem statements of Jayanthy to her daughter Sophia Nathan and to her sister Tharsika Seevaratnam. The statements sought to be adduced through Ms Nathan concerned how her mother felt about the way that the defendant mistreated her. I ruled that all of the statements to Ms Nathan came within the common law exception for statements showing a state of mind and that they were admissible. Some of the hearsay sought to be adduced through Tharsika Seevaratnam also came within the common law state of mind exception, namely Jayanthy’s explanation for not leaving her unhappy marriage, which was that “she wanted to settle the children… and go to the senior’s home”.

5In addition to the statements that were admissible through the state of mind exception, Jayanthy also told Tharsika that the defendant did not want family to visit, that he would be drinking and yelling all the time, that he told Jayanthy that he was the way he was because of her, that he had been unlucky in his marriage to her, that he called her vulgar names, that he always asked her for money to drink, that she told him to get a job, and that when he was drinking he would throw things around. Those statements fell outside of the common law exceptions and could only be admitted pursuant to the principled approach to hearsay. Pursuant to that approach, hearsay is admissible if it is shown that the reception of the evidence in hearsay form is necessary and that the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

6Necessity is not in issue in this case, of course, because Jayanthy is deceased. The reliability that must be established at the admissibility stage is not the ultimate reliability of the hearsay – that question is reserved to the trier of fact at the end of the case – but rather threshold reliability. Threshold reliability requires that the hearsay be sufficiently reliable to overcome the dangers arising from the difficulty in testing it.

7To assess threshold reliability, the trial judge must first identify the specific hearsay dangers presented by the statement. Generally speaking, those dangers arise from the difficulty that the trier of fact will have in assessing the accuracy of the statement and/or the truthfulness of the person making it. In this case, the concern in relation to Jayanthy’s statements about the defendant’s behaviour is not accuracy. It would be farfetched to be concerned about whether Jayanthy had misremembered or misperceived the manner in which the defendant behaved toward her generally, or specifically the way he treated her while he was drinking. The specific hearsay danger in this case, rather, is whether Jayanthy was telling the truth about those matters.

8Under the principled approach, that danger could be overcome by showing that there are adequate substitutes for testing the truth of Jayanthy’s statements (procedural reliability) or that there are sufficient circumstantial or evidentiary guarantees that the statements are inherently trustworthy (substantive reliability). There is no suggestion that there are adequate substitutes in this case for the traditional means of testing the truth of a witness’s testimony (an oath, presence before the trier of fact, and contemporaneous cross-examination). Accordingly, the admissibility of the statements Jayanthy made to Tharsika depends on whether the Crown can establish that they are inherently trustworthy.

9To determine whether the statements are inherently trustworthy, the circumstances in which they were made and any evidence that corroborates or conflicts with them can be considered. However, corroborative evidence can only be relied on if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about the material aspects of the statement.

10In my opinion, the combination of the circumstances in which Jayanthy made the statements to Tharsika with the corroborative evidence of Sophia Nathan establishes that the statements are inherently trustworthy. Jayanthy was the eldest of five girls, two years older than Tharsika. The two of them had a very close relationship. They spoke on the telephone “mostly every day” and they would get together about twice a month at a mall where they would talk. Tharsika described Jayanthy as a proud woman, who did not want to burden others with her problems. She kept a lot of things inside and would not complain to Tharsika about things that were bothering her. Her reticence in that respect tends to enhance the truthfulness of things that she did reveal to Tharsika about how the defendant was treating her. I am satisfied that there was not only no motive for Jayanthy to misrepresent the defendant’s conduct, her reluctance to burden Tharsika with her problems gave rise to a disincentive to complain about him. She was not looking to have Tharsika do anything as a result of what she told her, and she was not the kind of person who would seek sympathy from others.

11Notwithstanding the absence of details of the manner in which the individual statements were made, I am satisfied that the foregoing circumstances make Jayanthy’s statements to Tharsika inherently trustworthy. They support a finding of substantive reliability even without the added force of the significant corroboration provided by the direct observations of Sophia of the state of her parents’ marriage. Sophia’s evidence can only be relied on to establish threshold reliability if, when considered as a whole, it rules out alternative explanations for Jayanthy’s statements and shows on a balance of probabilities that the only likely explanation for the statements is Jayanthy’s truthfulness. I am satisfied that Sophia’s direct observations do that. I note, as well, that there was no evidence adduced in the course of the voir dire that was in conflict with an inference of truthfulness.

12For the foregoing reasons, I was satisfied that Jayanthy’s statements to Tharsika had been shown to meet the test of threshold reliability, and I ruled that they were admissible.

MacDonnell, J.