R. v. Sivakumar, 2022 ONSC 6532
COURT FILE NO.: CR-21-30000336
DATE: 20221121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SARANRAJ SIVAKUMAR
Defendant
Counsel:
Joe Hanna and Andrea McPhedran, for the Crown
Adele Monaco and Michael Hayworth, for the Defendant
HEARD: September 12 – November 1, 2022
ruling on the admissibility of evidence
Justice S. Nakatsuru
[1] These are my written reasons for the ruling I made on the admissibility of hearsay statements the Crown sought to introduce at Saranraj Sivakumar’s trial by jury for the offences of second-degree murder and attempted murder.
[2] The Crown sought admission of three hearsay statements under the principled exception to the hearsay rule:
(1) Portions of a video statement given by Rakul Hasentharasas to the police on December 3, 2019.
(2) A portion of the testimony of Rakul Hasentharasas given at the defendant’s preliminary inquiry on February 2, 2021.
(3) A video statement by Arvin Mathuvan surreptitiously recorded on September 21, 2019.
[3] Both Mr. Hasentharasas and Mr. Mathuvan were called as Crown witnesses. Both were cross-examined under s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”). Both did not adopt as true their out-of-court statements that the Crown seeks to rely on as evidence at Mr. Sivakumar’s trial.
A. BACKGROUND OF THE OFFENCES
[4] A brief background of the underlying facts of the charges will do. It is the Crown’s theory that on September 19, 2019, Mr. Sivakumar shot and killed Charankan Chandrakanthan and shot, with the intent to kill, Sathujan Srikaran. On the evening of September 19, a large group of people was socializing outdoors, drinking, and listening to music at the parking lot of an industrial plaza in Scarborough which was often used as an informal hangout. It was known as the “M Spot”. Many of the people in attendance were intoxicated. An argument broke out between Mr. Sivakumar and Mr. Chandrakanthan. Others present tried to break it up and calm things down, with some success. At some point after the argument, Mr. Sivakumar took out a handgun from a Gucci bag he had on him and fired four shots. One bullet struck and killed Mr. Chandrakanthan who was standing near his pickup truck. Two bullets went through the front driver’s side window of that truck. Mr. Srikaran, a friend of the deceased, who had been in the truck, was grazed in the shoulder by one of the bullets. Immediately after the shooting, but for three men, everyone drove or ran away. Arvin Mathuvan, another friend of the deceased, who stayed at the scene along with Mr. Srikaran, called 911. When the ambulance arrived, Mr. Chandrakanthan was dead.
[5] The identity of the shooter is a central issue at trial. The Crown’s proof of this essential element relies upon circumstantial evidence. No one can identify Mr. Sivakumar as the shooter.
[6] The hearsay statements that the Crown seeks to admit for the truth of their contents do not directly identify Mr. Sivakumar to be the shooter but are additional pieces of circumstantial evidence to support that inference.
B. THE PRINCIPLED APPROACH
[7] Hearsay is presumptively inadmissible. The main concern underlying the rule against hearsay is the inability to test the evidence: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2. Such evidence is generally excluded to protect the integrity of the truth-seeking function of the trial and to preserve its fairness: see R. v. Dupe, 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 44.
[8] In addition to the traditional categorical exceptions to the hearsay rule, under the principled approach to hearsay, hearsay can exceptionally be admitted when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are proven on a balance of probabilities: see R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. Even when the burden has been met, a hearsay statement still can be excluded when its prejudicial effect outweighs its probative value: see Khelawon, at para. 3.
[9] Necessity refers to the need of the hearsay evidence to prove a fact in issue. It does not mean necessary to the prosecution’s case. The concept encompasses many diverse situations that have in common the nonavailability, for a variety of reasons, of the relevant direct evidence: see R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at paras. 35-36.
[10] As the gatekeeper in a jury trial, the judge determines the threshold reliability of a hearsay statement. Ultimate reliability remains to be decided by the trier-of-fact. Threshold reliability is met by demonstrating there is: (1) procedural reliability; when adequate substitutes are in place to test the truth of the statement, or (2) substantive reliability; when sufficient circumstantial or evidentiary guarantees exist that the statement is inherently trustworthy: see Bradshaw, at para. 32; R. v. Youvaraj, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
1. The Statement Given by Rakul Hasentharasas to the Police
[11] The Crown sought admission of a statement Rakul Hasentharasas gave to the police after the shooting to prove that Mr. Sivakumar uses the name “Munkzz”. The Crown theory is that another witness, Arvin Mathuvan, identifies Munkzz as the shooter.
[12] Mr. Hasentharasas is a longtime close friend of Mr. Sivakumar. He was with Mr. Sivakumar on September 19, 2019, before the shooting. He testified that he was at a volleyball game at a park where people barbequed, socialized, and drank alcohol. Later, he went with Mr. Sivakumar along with others to an LCBO to buy more alcohol to take to the M Spot.
[13] Mr. Hasentharasas’s interview with D.C. Warden on December 3, 2019 was video recorded. In that police statement, Mr. Hasentharasas said that Mr. Sivakumar, whom he referred to as “Raj”, used the nickname Munkzz. Mr. Hasentharasas said this a total of three times during the course of the police statement. At trial, he testified that he never knew Mr. Sivakumar to go by the name Munkzz and that he had never heard anyone call Mr. Sivakumar by that name. He testified that he only told the police officer that Mr. Sivakumar’s nickname was Munkzz because he had seen a flyer with Mr. Sivakumar’s photo and the name Munkzz on it at a mall frequented by the Sri Lankan community.
[14] Necessity is given a “flexible definition, capable of encompassing diverse situations”: Smith, at para. 36. Where a witness recants a prior statement, necessity is established as the recanting witness effectively deprives the court of their prior evidence: see Youvaraj, at para. 22; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 129.
[15] I appreciate that necessity should not be narrowly construed. Nonetheless, I am not satisfied that the Crown has proven that Mr. Hasentharasas has effectively recanted his prior police statement to D.C. Warden.
[16] First, while I ruled that the Crown was permitted to cross-examine Mr. Hasentharasas pursuant to s. 9(2) of the CEA as his statement given to the police was inconsistent with his testimony, this does not automatically translate into necessity being met under the principled approach. Hearsay is presumptively inadmissible, and the Crown must prove on a balance of probabilities the criterion of necessity. In contrast, cross-examination under s. 9(2) is discretionary.
[17] Second, in this case, I find that Mr. Hasentharasas has neither recanted nor put a “gloss” that amounts to recantation on the material portions of the statement to D.C. Warden. Throughout the statement, Mr. Hasentharasas referred to Mr. Sivakumar as “Raj”. When D.C. Warden first asked if Raj went by any nicknames, Mr. Hasentharasas replied none that he was “too well aware of”. It was only when the officer expressly suggested to him that Munkzz was a nickname that Mr. Sivakumar used that Mr. Hasentharasas agreed. The other two times Mr. Hasentharasas agreed that Raj was Munkzz were again when the officer suggested this was the case to him. At no time did the officer clarify how or when Mr. Hasentharasas came to have the knowledge that Mr. Sivakumar used the nickname Munkzz. It was only in his evidence at trial that Mr. Hasentharasas explained that he became aware of the fact that Mr. Sivakumar went by the nickname Munkzz from a flyer he had seen. In my view, this was not a recantation of his police statement but a clarification of it.
[18] The Crown argues that necessity is met because Mr. Hasentharasas’s trial testimony is not of the “same value” as what he told D.C. Warden, relying on Lamer C.J.’s statement in R. v. B. (K.G.) [K.G.B], 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 about prior inconsistent statements and the necessity requirement. However, a more careful assessment of what Lamer C.J. said, at para. 110, is warranted:
In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, "hostage." The different "value" of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness's explanation of the change. [Emphasis added.]
[19] In this instance, the change was not particularly significant, let alone radical, given the fundamentally flawed and limited nature of the questioning that the officer conducted. D.C. Warden’s questioning about Mr. Hasentharasas’s knowledge of Mr. Sivakumar’s use of the nickname Munkzz was explicitly suggestive and he never asked any of the obvious questions that ought to have been asked. To use the well-worn phrase, he was putting words in Mr. Hasentharasas’ mouth to further the investigation.
[20] Third, if this is all that is required to pass the necessity threshold, then anytime a witness adds to or explains an out-of-court statement, it will open the necessity door to an application to use that hearsay statement as substantive evidence. This cannot be right.
[21] In the alternative, if the necessity and reliability thresholds were met, I would exercise my residual discretion to exclude Mr. Hasentharasas’ statement. While there is perhaps little prejudice to its introduction, I find that, even if the jury did not accept Mr. Hasentharasas’s explanation, the statement has minimal probative value given the suggestive and limited nature of the questioning on this point done by D.C. Warden.
2. The Testimony of Rakul Hasentharasas Given at the Preliminary Inquiry
[22] The Crown seeks the admission of a portion of the testimony given by Mr. Hasentharasas at the defendant’s preliminary inquiry that he and Mr. Sivakumar went to the M Spot the night the shooting took place.
[23] Mr. Hasentharasas testified at trial that he did not recall Mr. Sivakumar going to the M Spot where people had gathered to drink and socialize on the night of the shooting. He testified that he was intoxicated and that he only assumed Mr. Sivakumar went to that location because Mr. Sivakumar was with the group at the LCBO. However, he had no actual recollection of Mr. Sivakumar being there. Even when cross-examined on his testimony given at the preliminary inquiry, he maintained that he could not remember Mr. Sivakumar being there.
[24] Contrary to his testimony at trial, on February 3, 2021, at the preliminary inquiry, Mr. Hasentharasas testified that Mr. Sivakumar and a friend named Janath went to the M Spot. He was asked several times about whether Mr. Sivakumar went to the M Spot. Initially, Mr. Hasentharasas testified that “probably” the same people that were at the LCBO went there. When asked by the preliminary inquiry judge who else went there with Mr. Sivakumar, he replied Janath. When asked by the Crown how he and Mr. Sivakumar got there, he testified that they got there in the same vehicle. At first, when asked if it was his “recollection” that he and Mr. Sivakumar were in the same vehicle travelling from the LCBO, Mr. Hasentharasas agreed it was in the same vehicle, but then he said he was not sure it was the same car as there were more than one car that went to the M Spot. When asked who did he “see” when he arrived at the M Spot, Mr. Hasentharasas testified that he probably saw a couple of people he did not know. When asked how many people were there, he testified that there were a lot, probably 20 or more. Finally, when asked who he knew that was there, Mr. Hasentharasas testified that Mr. Sivakumar and Janath were there, but he honestly did not know who else was there. At no time during his preliminary inquiry testimony did Mr. Hasentharasas ever say he was just assuming that Mr. Sivakumar went to the M Spot.
[25] I find that necessity has been met. Unlike the police statement, I find here that the explanation given by Mr. Hasentharasas that he was only assuming Mr. Sivakumar went to the parking lot was effectively a recantation of his preliminary inquiry evidence. Clearly, at the preliminary inquiry, he testified that he saw Mr. Sivakumar at the M Spot. He did not say that he merely assumed this because he was too intoxicated to recall it. There is a significant difference between the two statements. Moreover, at the preliminary inquiry, there was full opportunity for Mr. Hasentharasas to clarify this distinction. He did not do so. Rather, he gave direct answers that showed he had personal knowledge of Mr. Sivakumar’s presence at the scene of the shooting.
[26] This situation is similar to R. v. F.O., 2016 ONSC 1898. In that case, an intercepted conversation by a witness to a shooting was cast by the witness at the murder trial as being a made-up story for the witness to “big” himself up to other detainees at a youth facility where he said this. He testified that he was not present at the scene of the shooting and did not see anything. Nordheimer J. (as he then was) permitted the admission of that statement under the principled approach. Relevant to my decision was his finding that necessity was met because, even though there was no direct recantation, the witness’s later assertion that the statement was a work of fiction, had the same fundamental effect. It was not the unavailability of the witness, but the unavailability of this significant statement that met the necessity requirement.
[27] Much like the witness in F.O., Mr. Hasentharasas’s testimony that he was only assuming Mr. Sivakumar’s presence at the M Spot, as opposed to having personal knowledge that he was there, is a fundamental change in his evidence. The former is worthless if not inadmissible, while the latter is direct evidence tending to prove an essential element, the identity of the shooter. The unavailability of that evidence meets the necessity requirement in this case.
[28] Regarding threshold reliability, the preliminary inquiry evidence patently meets procedural reliability. Apart from the lack of a videorecording of Mr. Hasentharasas’s preliminary inquiry evidence, the recognized means of rationally evaluating the truth and accuracy of hearsay statements from a procedural perspective fully exist: (1) the presence of an oath or solemn affirmation; (2) an accurate transcription of his testimony; (3) contemporaneous cross-examination at the preliminary inquiry; and (4) Mr. Hasentharasas’s availability to be cross-examined before the jury.
[29] There is no need to inquire into substantive reliability.
[30] Lastly, I would not exercise my residual discretion to exclude the statement on the basis that the prejudicial effect outweighs its probative value.
[31] The evidence has significant probative value. While Mr. Hasentharasas, in his trial testimony, can place Mr. Sivakumar with him at the LCBO, he does not put him at the scene of the shooting. Mr. Hasentharasas’s preliminary inquiry evidence does. Mr. Hasentharasas accompanied Mr. Sivakumar from the LCBO to the M Spot in the same vehicle. Thus, this is direct evidence relevant to a key issue in dispute; that is Mr. Sivakumar’s identity as the shooter.
[32] There is no moral prejudice to the admission of this evidence. There is little reasoning prejudice. The jury has already heard the contents of the preliminary inquiry evidence after the Crown received leave to cross-examine Mr. Hasentharasas under s. 9(2) of the CEA. Only a very discrete portion of Mr. Hasentharasas’s preliminary inquiry testimony, about two pages, need to be presented to the jury. Instructing the jury on the proper use of this prior out-of-court statement is neither complex nor confusing and creates no prejudice to the trial process: see R. v. Rowe, 2021 ONCA 684, at paras. 93-94.
[33] This evidence is admissible under the principled exception to the hearsay rule.
3. The Surreptitiously Recorded Statement of Arvin Mathuvan
[34] The Crown seeks admission of a surreptitious videorecording of Mr. Mathuvan recorded by the ex-girlfriend of the deceased, Vienirtha Varnarajan, two days after the shooting at a gathering to mourn Mr. Chandrakanthan at his parents’ home.
[35] In his trial testimony, Mr. Mathuvan testified that he was at the M Spot, but that he drank too much, got really drunk, and was blacking out. During the Crown’s questioning, although it took a while, he eventually agreed that he called 911 after seeing Mr. Chandrakanthan lying on the ground, shot. He could not remember how that happened. He testified that it was a blur.
[36] He told the Crown the names Rakul, Dubs, and Munkzz did not sound familiar. Asked if he witnessed any arguments or heard gunshots that day, he testified that he did not recall as he was extremely drunk.
[37] In the surreptitious recording made on September 21, 2019, Mr. Mathuvan gives a detailed account of what happened at the M Spot the night of the shooting. To summarize, he tells Ms. Varnarajan and a friend of hers, Akila, that at the scene of the shooting, a cousin of Mr. Chandrakanthan, “Dubs”, started getting sick. Munkzz said to give him water to take care of him, but not in a vicious way. Mr. Chandrakanthan said “Relax, that is my cousin.” Munkzz got “cheesed”. They argued for 10 to 15 minutes while people were pushing Munkzz and telling him to relax and that “they were all friends.” Munkzz went to “dab” Sathu (meaning Mr. Srikaran) because Sathu looked like Mr. Chandrakanthan. In the recording, Mr. Mathuvan physically demonstrates what he saw to the two women and then says that he missed something in the middle that was key. As the argument was happening, Mr. Chandrakanthan picked up a wooden stick but everyone told him to put it away and he did. Then, he got a boxcutter and put it in his pocket. Mr. Mathuvan found the boxcutter next to the deceased after he had been shot. Mr. Mathuvan then tells Ms. Varnarajan and Akila that “after the relax and dabs thing”, the argument was still happening. Mr. Chandrakanthan stared at Munkzz. Everyone was pushing Munkzz back against the wall behind the car. According to Mr. Mathuvan, Munkzz felt like one of the guys hit him and said “you guys hit me”. He pulled out his gun from a Gucci bag. He let one or two in the air, one or two at the truck, then one or two at Mr. Chandrakanthan.
i. Additional evidence heard on the voir dire
[38] Mr. Mathuvan was cross-examined by the defence on the voir dire about his addiction to alcohol. He testified he drank daily and he drinks to get drunk. However, he has a job doing deliveries for Amazon and he does not drink until he gets home. He testified that he often has had blackouts in the past.
[39] He testified that although he did not slur on the 911 call and may have appeared sober at the police station, he still was drunk.
[40] Initially, he testified that he did not remember any visit to the deceased’s home on September 21. Then, he agreed he had seen a poster in color on the internet where he got the name Raj and Munkzz from before he went to visit Mr. Chandrakanthan’s home. He testified that when he got to the house, there were a lot of people there, including Mr. Chandrakanthan’s friends, and people were crying. When defence counsel suggested to him that the information contained in his videorecorded statement was from the poster, he agreed it probably was. He testified that there was emotional upheaval at the house and that he was trying to take away the girls’ pain. He testified that he thinks he told them what he saw on the internet. He thought that if he did say anything about Munkzz, it came from the poster.
[41] Mr. Mathuvan was cross-examined about the M Spot. He did not recall arriving and where the deceased’s pickup truck was parked. When it was suggested by the defence that he was seated in the back seat of the truck drinking with Mr. Srikaran, he replied that he thought so. He also agreed he really could not see anything to the left or right as he was in the back seat and the windows were darkly tinted.
[42] Ms. Varnarajan testified on the voir dire about the circumstances surrounding the making of the surreptitious recording. Mr. Chandrakanthan had been her boyfriend for close to five years. They broke up in May 2019 but remained friends. She had known Mr. Mathuvan for about four years as Mr. Chandrakanthan’s friend and had socialized with him.
[43] On September 21, 2019, at a gathering at the deceased’s family home, Ms. Varnarajan saw Mr. Mathuvan. He was outside the house. The deceased’s father was asking him to come forward with any information he had. Mr. Mathuvan approached Ms. Varnarajan in the morning, asking to talk to her. They went to the side of the house. Mr. Mathuvan was crying describing how he had seen his friend with blood coming out of the nose and mouth. They spoke for a couple of minutes and Mr. Mathuvan walked away.
[44] At around 4:00 p.m., Mr. Mathuvan said he wanted to speak to her again. Mr. Mathuvan said it was okay for Akila to come along. Ms. Varnarajan started to record what Mr. Mathuvan said to her without him knowing because she planned to send the recording to the police if he did not go to the police. She later sent it to Detective Shankaran. She, Akila, and Mr. Mathuvan were the only ones present at the curb outside of the home. Mr. Mathuvan asked Ms. Varnarajan if she knew what had happened and she said she just knew they were there. Neither Akila nor her said anything else to him before she started recording. No threats or offers were made to him. They were not at all aggressive to him. Ms. Varnarajan had no prior contact with the police about making such a recording. The recording starts as Mr. Mathuvan is talking about the events of September 19, 2019. Ms. Varnarajan made two successive recordings of Mr. Mathuvan that day. In the first, Mr. Mathuvan described what happened leading up to the shooting. Ms. Varnarajan testified about certain gestures made by Mr. Mathuvan as he was relating the events that were not captured by the camera. After the end of the first recording of 17 minutes, they got up and Mr. Mathuvan walked away, although he remained close by as he talked to others. Mr. Mathuvan returned a few minutes later and Ms. Varnarajan started recording again. The second conversation with Mr. Mathuvan ended with him getting into a car and driving off.
[45] Ms. Varnarajan testified that Mr. Mathuvan did not appear intoxicated that day. He was sober but very emotional and anxious. He was pretty close to her, and she did not smell anything. Ms. Varnarajan has seen Mr. Mathuvan drink before and she testified that he gets knocked out as he is a lightweight.
ii. The hearsay dangers of the recorded statement
[46] Several hearsay dangers exist. The statement is not under oath or solemn affirmation. The videorecording is partial and not of the greatest quality. The lack of contemporaneous cross-examination of the declarant to test the reliability of the statement is of concern. Perception, memory, narration, and sincerity that cross-examination is designed to test are issues when it comes to Mr. Mathuvan’s statement. Mr. Mathuvan’s intoxication at the time of the shooting could have affected his perception of what happened. Related is whether his memory of the event was affected by intoxication. Additionally, his memory could have been influenced by others or other information he may have received in the interval, such as the poster. In the statement, Mr. Mathuvan speaks quickly at times and uses words and terminology that may not be familiar to the jury that could lead to ambiguity and error in ascribing meaning to the statement. Finally, people lie and exaggerate, and Mr. Mathuvan may have had a motive to be untruthful in speaking to Ms. Varnarajan.
[47] While all these concerns exist, the major hearsay danger is the effect of intoxication on the reliability of his out-of-court statement.
iii. Necessity
[48] There is no dispute that necessity has been met. Mr. Mathuvan cannot remember the material events of September 19, 2019, that he described in the recorded statement. Moreover, he cannot even recall giving his statement to Ms. Varnarajan or the circumstances in which he gave it. He blames this on his intoxication at both relevant times and his continued addiction to alcohol. Necessity is made out due to this lack of present memory of the facts related in the earlier out-of-court statement: see R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 46.
[49] That said, I go further. In my opinion, Mr. Mathuvan’s purported lack of recollection on the pivotal observations of the shooting that he relates in the September 21, 2019, statement is also an attempt to avoid having to testify about them. Despite efforts by the Crown to refresh his memory and after cross-examining him under s. 9(1) of the C.E.A., Mr. Mathuvan maintained his failure of memory. This explanation did not hold water for me. Mr. Mathuvan was simply not credible regarding his professed lack of memory. As a result, necessity is also met as I find Mr. Mathuvan’s stance during his trial testimony is akin to a refusal to testify: see R. v. Scott, 2004 NSCA 141, 228 N.S.R. (2d) 203, at paras. 20, 70.
iv. Procedural reliability
[50] The focus at this stage is not so much on whether there is a reason to believe the statement is true as it is on the question of whether the jury will be in a position to rationally evaluate the evidence: see Khelawon, at para. 76.
[51] I find that there are a number of adequate substitutes for testing the evidence: see Bradshaw, at para. 27.
[52] First, Mr. Mathuvan’s statements were recorded. Using her phone, Ms. Varnarajan video-recorded what Mr. Mathuvan was saying. Since the recording was done surreptitiously, there are moments when Mr. Mathuvan is not in view of the camera, and one just sees background like trees, sky, or the ground. However, at the beginning especially, there are large portions of the video where Mr. Mathuvan’s face is visible as he relates what happened on the evening in question. The jury will get a good opportunity during this time to assess both the reliability and sincerity of what he says through his demeanour. Moreover, this is good evidence to evaluate Mr. Mathuvan’s trial testimony that he was intoxicated at the time he gave this statement. At other times throughout the video, there is only audio. However, the audio remains an accurate record of what Mr. Mathuvan said. Moreover, the inflections in his voice, his emotional state, and the manner and cadence of his speech will be available for the jury to assess, assisting them in determining the weight to give to his account. It is superior to a written statement given through the testimony of a witness who has just overheard the hearsay statement: see R. v. Warsame, 2012 ONSC 3927, at paras. 35-36.
[53] Second, although no oath, promise to tell the truth, or caution about the consequences of lying formed a part of this discussion between Mr. Mathuvan and Ms. Varnarajan and Akila, these are neither pre-requisites for procedural reliability nor significant procedural safeguards if the statement is videorecorded and the declarant is available for cross-examination: see R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), at para. 78; Rowe at para. 59. Also, the circumstances that existed during this recording provided for a demonstrable and reliable reason for Mr. Mathuvan to be truthful and are of some relevance in helping the jury to rationally evaluate the statement. The statement was given at a solemn occasion where the circumstances supported telling the truth about the shooting. It was two days after the shooting, at a gathering at the deceased’s family home, told to the ex-girlfriend of the deceased with whom Mr. Mathuvan knew for some four years, in apparent confidence, and in the context of deciding whether Mr. Mathuvan should go to the authorities with the information he had. This is to be contrasted with a scenario where a statement is given in a casual way at a social event much removed in time from the shooting. I do appreciate that the circumstances are not the same as giving a statement to an authority figure like the police where the consequences of lying could involve criminal charges being laid, but they are nonetheless such that the need to tell a truthful and accurate account of the shooting would have been impressed upon Mr. Mathuvan.
[54] Third and most significantly, Mr. Mathuvan is available to be questioned at trial. The availability of the declarant for cross-examination is the most important procedural safeguard: see Khelawon, at para. 76; Rowe, at para. 51; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 74, 81; R. v. Trieu, at para. 76.
[55] That said, cross-examination must be meaningful. If the loss of memory impedes the jury’s ability to assess the ultimate reliability of the statement, the trial judge must take this into account: see R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at paras. 26-27; R. v. F.J.U., 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 46. On the other hand, the declarant’s loss of memory is only one factor, though it can be a determinative one, in deciding threshold reliability of a statement: see R. v. P.G., 2011 ONCA 50, at para. 5; R. v. Zaba, 2016 ONCA 167, 336 C.C.C. (3d) 91, at paras. 13-16.
[56] In this case, unquestionably, Mr. Mathuvan’s purported lack of recollection of the events in question will impair the jury’s ability to assess the ultimate reliability of the statement. Moreover, when it comes to the shooting itself, his lack of recollection seems complete. ‘Evidence about Mr. Mathuvan’s intoxicated state does not just come from his own testimony. There is other corroborative evidence supporting Mr. Mathuvan’s testimony that he had been drinking that night and was intoxicated.
[57] Additionally, Mr. Mathuvan claims a lack of recollection of the statement given to Ms. Varnarajan, attributing this again to a state of intoxication.
[58] On the other hand, as the cross-examination of Mr. Mathuvan on the voir dire illustrated, the opportunity to cross-examine is not illusory. He was responsive to defence counsel’s questions and was willing to agree to suggestions put to him: see R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179, at para. 93. The cross-examination demonstrated not only that it could reasonably permit the jury to assess the truthfulness and reliability of the out-of-court statement, but it also showed it could provide evidence helpful to the defence. Concrete examples are that, under cross-examination, Mr. Mathuvan believed he obtained the name Munkzz from a poster on the internet prior to speaking with Ms. Varnarajan. The jury will be able to assess whether that could have been the source of the name Munkzz who Mr. Mathuvan said was the shooter in his videorecorded account. Further, under cross-examination, Mr. Mathuvan was able to recall that he sat in the back of the pickup truck before the shooting took place, lending credence to the defence position that the occupants seated within the vehicle may not have seen the shooter given the darkly tinted windows.
[59] Additionally, to meet procedural reliability, the cross-examination of Mr. Mathuvan does not require that he always be able to give substantively responsive answers to questions posed of him. The way he testifies in court can assist the jury in determining the comparative reliability of his trial testimony and the out-of-court statement: see Devine, at para. 28; R. v. Weldekidan, 2019 MBCA 109, 381 C.C.C. (3d) 540, at para. 60. Having seen Mr. Mathuvan’s evidence so far, I will say that the jury will undoubtedly find this to be very useful.
[60] Finally, regarding Mr. Mathuvan’s alleged intoxication at the time he gave the statement to Ms. Varnarajan, I agree with the observations made by Woollcombe J. in R. v. Hoffman, 2019 ONSC 3435, at paras. 35- 41, rev’d on other grounds 2021 ONCA 781, at para. 64. In essence, Mr. Mathuvan’s demeanour and responses in the videorecorded statement and his cross-examination in court will adequately equip the jury in assessing the comparative reliability of Mr. Mathuvan’s statement and testimony despite his assertions of intoxication at the time the recording was made. Thus, in this way as well, cross-examination is not illusory.
[61] Looking at procedural reliability, I find that the substitutes go a long way, if not all the way, in meeting the threshold reliability test for admission.
v. Substantive reliability
[62] Substantive reliability is gauged by the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: see R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 102.
[63] Several circumstances in which the statement was made support substantive reliability: see R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54. First, Mr. Mathuvan’s statement was made relatively shortly after the shooting. The nature of the event was something that would draw his attention, stand out in his mind, and not be readily forgotten. Second, there is an absence of evidence of a motive to fabricate the statement: see R. v. Czibulka, (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.), at paras. 37-40; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 40-43. While Ms. Varnarajan was interested in finding out what happened to her ex-boyfriend, it is not plausible that Mr. Mathuvan would come up with such an elaborate fabrication just to placate or please her. Moreover, the potential motive that Mr. Mathuvan would blame Munkzz for the shooting because of his friendship with the deceased and an animus against the accused lacks foundation since there is no evidence that Mr. Mathuvan had such an animus against Munkzz. Additionally, the statement is not entirely one-sided as Mr. Mathuvan attributes hostile actions to Mr. Chandrakanthan, such as picking up a stick during the argument. Third, while it is true that the beginning of Mr. Mathuvan’s account is not recorded, once he begins relating what happened in the recording, no suggestive questioning takes place, and Mr. Mathuvan talks about the events in detail, quite spontaneously, and in a free-flowing fashion: see F.O., at paras. 21, 24; R. v. Fredericks, 2018 NBCA 56, 365 C.C.C. (3d) 498, at para. 84. I also accept Ms. Varnarajan’s testimony that she was not aggressive to him and did not threaten him or offer him anything. Fourth, Mr. Mathuvan was found by the police at the scene of the shooting. Unquestionably, he was in a position to have direct knowledge of the incident. While it is possible that he got some details from other sources, i.e., the poster, there is nothing inconsistent about what he said he saw in relation to how he could have come to have that knowledge by direct observation. Sixth, Mr. Mathuvan did not know that he was being recorded. In the circumstances of this case, this supports the reliability and honesty of what he said: see F.O., at para. 22. Given that he was already leery about cooperating with the police, his misapprehension that he was not being recorded would allow him to feel free to tell the deceased’s ex-girlfriend and her friend the unvarnished truth about what he saw. Indeed, the statement comes across as if Mr. Mathuvan was unburdening himself of what he saw; something that was weighing heavily upon him.
[64] Other factors detract from the statement’s substantive reliability. Mr. Mathuvan’s intoxication is the main one. Evidence from D.C. Vukovic that when he arrived at the scene of the shooting, Mr. Mathuvan was intoxicated, supports this. Other circumstantial evidence, such as the large whiskey bottles left at the scene, also support this.
[65] It is because of this countervailing factor that corroborative evidence takes on significance. In Bradshaw, at para. 57, Karakatsanis J. held that in determining whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:
identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
[66] The material aspect of the hearsay statement tendered for its truth boils down to the identification of Mr. Sivakumar a.k.a. Munkzz as the shooter.
[67] I have previously identified the hearsay dangers. While there is evidence that generally corroborates Mr. Mathuvan’s testimony, i.e., other witnesses see an argument break out at the M Spot, this evidence does not corroborate the material aspect of the hearsay statement the Crown relies on, the identity of the shooter. Given Mr. Mathuvan’s professed state of intoxication, and for the reasons stated above, the key danger is not dishonesty, rather it is the inaccuracy of Mr. Mathuvan’s observations. The danger is real that his recollection of the shooter’s identity has been affected by intoxication. On the other hand, it is unlikely that a more general loss of memory is a significant concern. Only two days passed from the shooting to his statement. It was an event that would stick out in the memory of anyone who saw it. It is not something one would likely forget after a few days. The statement itself gives a detailed blow-by-blow account of what happened at the time, supporting a finding of a good recall.
[68] Alternative explanations for the statement are that Mr. Mathuvan just honestly misperceived that Munkzz was the shooter especially given his intoxicated state of mind. Also, he may have been saying more to Ms. Varnarajan and Akila than he saw or remembered to please or placate them as they, along with others, including the deceased’s father, wanted him to come forward with what he knew. He may have felt some pressure to come up with details that were not based upon accurate recollections. Third, though this is very speculative, Mr. Mathuvan may have falsely blamed Munkzz as being the shooter because of some unknown animus against him or because he may have viewed him as the instigator of the whole tragedy since he had gotten into an argument with the deceased earlier on.
[69] Addressing these alternative explanations, is a significant detail Mr. Mathuvan mentioned in the recorded statement that Munkzz took the gun from a Gucci bag before shooting. The Crown relies on other circumstantial evidence to prove that Munkzz is Mr. Sivakumar. The Crown also has evidence that Mr. Sivakumar has carried a Gucci bag on other occasions and earlier on the evening in question at the LCBO when he and other males were purchasing alcohol. Given this context, the key corroborative evidence that supports substantive reliability is the fact that a Gucci bag with Mr. Sivakumar’s DNA on it was retrieved by the police upon his arrest three days after the shooting. The bag was concealed in the spare tire wheel well under a flooring carpet of the car in which Mr. Sivakumar was a passenger when he was arrested. It is the same car that the Crown alleges was driven by Mr. Sivakumar to the scene of the shooting. Some 45 particles of gunshot residue (“GSR”) were found inside the empty Gucci bag.
[70] The police had not released any detail that a bag, let alone a Gucci bag, was involved in the shooting. The fact that Mr. Mathuvan told Ms. Varnarajan that the shooter retrieved the gun from a Gucci bag and then a Gucci bag with GSR was retrieved by police in circumstances connecting Mr. Sivakumar to this bag within days after the shooting in a vehicle said to be driven by him to the shooting, provides a strong circumstantial guarantee of trustworthiness to this part of Mr. Mathuvan’s statement.
[71] The GSR found in the Gucci bag and the circumstances of the bag’s discovery go a long way in showing that alternative explanations are unlikely. The GSR is itself very trustworthy evidence: see Bradshaw, at para. 50. There is a strong inference available that if the shooter took the gun from the Gucci bag, he would return it to the same bag after the shooting. It would be a remarkable coincidence that Mr. Mathuvan would misperceive the shooter taking the gun from the Gucci bag when GSR was later found in it. Equally implausibly coincidental is if he was just making up details to please Ms. Varnarajan. This explanation falters as well given the finding of the GSR. Sure, it is theoretically possible that the GSR was deposited in the bag on some unrelated occasion and that Mr. Mathuvan just happened to point to the Gucci bag as the source of firearm that night, but in my view, this does not survive the scrutiny that even a speculative explanation must survive on this part of the Bradshaw analysis: see R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at paras. 31-34. All in all, it is unlikely that cross-examination would change this material aspect of the statement: see R. v. Shepard, 2019 NBCA 76, 380 C.C.C. (3d) 137, at para. 54.
[72] This corroborative evidence supporting admissibility bears some similarity to the victim’s DNA on the baseball bat that was said to be the murder weapon in R. v. Larue, 2018 YKCA 9, 434 D.L.R. (4th) 155, aff’d 2019 SCC 25. In Larue, the appellant’s DNA was found on the handle of the bat. This corroborative evidence showed the only likely explanation for the declarant’s statements regarding the appellant’s participation in the murder was her truthfulness because, on a balance of probabilities, it ruled out any other plausible alternative explanation for her statements. The hearsay was held to be admissible because of the strength of the corroboration, amongst other reasons.
[73] I would conclude that the corroborative evidence in the case at bar, when considered in the context of all the evidence, meets the threshold for substantive reliability but for the fact that the GSR expert leaves open the possibility that the GSR could have gotten into the Gucci bag if the person carrying it was a nearby bystander to the shooting with the top of the Gucci bag opened or had innocently put a hand with GSR on it into the bag and thereby had transferred it in this alternative way. Given this possibility, the hearsay dangers are not fully overcome by this corroborative evidence. When considered as a whole and in the circumstances of the case, the declarant's truthfulness about, or the accuracy of, the material aspect of the statement is not the only likely explanation for the hearsay statement, at least not to the high standard required for substantive reliability.
vi. Conclusion
[74] In my opinion, assessed by themselves, both procedural reliability and substantive reliability alone come very close to proving, on a balance of probabilities, threshold reliability for Mr. Mathuvan’s recorded statement. Any deficiencies that may remain are overcome when the two are considered together.
[75] Elements of procedural reliability and substantive reliability are not mutually exclusive and may work in tandem to overcome the specific hearsay dangers a statement might present, even where each on its own is insufficient to establish threshold reliability: see Rowe, at para. 82; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 127; Al-Enzi, at para. 138.
[76] To be clear, I recognize that some caution must be exercised regarding this approach so that the test for the admission of presumptively inadmissible hearsay is not unduly diluted by cobbling together pieces of procedural reliability and substantive reliability to try and build a case for admission when the foundation is lacking. However, such is not the case here. The admissibility of Mr. Mathuvan’s statement is built on a solid foundation based upon the symbiotic relationship of the two types of threshold reliability.
[77] The Crown has proven that the recorded statement of September 21, 2019 should be admitted before the jury on the principled exception to the hearsay rule.
vii. Prejudice vs. probative value
[78] My consideration on this issue must be bifurcated between the two separate videos the Crown seeks to introduce. The first video recording contains what Mr. Mathuvan said happened leading up to and during the shooting. The second video recording, made a short time after the first, does not contain any real reference to the shooting, and the Crown seeks its admission for other purposes.
[79] The statement made in the first video has great probative value. It is a detailed account of the shooting and directly identifies, albeit through circumstantial evidence, who the shooter is. Noteworthy as well is that the contents of the statement also have probative value from the perspective of the defence. It reveals certain actions of the deceased which may be relevant to the Crown’s proof of the mental element for murder and to the defence of provocation.
[80] There is little moral or reasoning prejudice in the statement. The evidence has no moral prejudice: it does not reveal any other offences committed by the shooter or any previous disposition on his part that could improperly affect the jury’s reasoning. It is a short and self-contained video that can be played for the jury through the witness, Ms. Varnarajan. Mr. Mathuvan has already been cross-examined on the contents of the video by the Crown. The admission of this video raises no peripheral issues, is not distracting or confusing, and will not unduly lengthen the trial.
[81] I find that the first video’s admission can only further the truth-finding process. I do not exercise my discretion to exclude it because its probative value significantly outweighs any prejudicial effect of its admission. As well, I note the jurisprudence that recognizes that where necessity and reliability are established, admission of the evidence will rarely undermine trial fairness: see Khelawon, at para. 49.
[82] Turning to the second video, I find that its probative value is outweighed by its prejudicial effect. The concern here is moral prejudice. I denied the Crown leave to cross-examine Mr. Mathuvan on the second video under s. 9(2) the CEA. The concern I had then is the same concern I have now. I will repeat the essence of what I said then.
[83] The Crown submitted that the second video is relevant since Mr. Mathuvan states in that recording that his fear is the reason why he did not want to come forward to the authorities. The Crown argues that this explains why he did not want to say what happened to the 911 operator when asked, why he lied to the police in his recorded statement to the police at the station that night, and why he is feigning a loss of memory before the jury.
[84] In the second video, Mr. Mathuvan, in his exchanges with the women who are encouraging him to come forward with what he knows about the shooting, is reluctant to do so as he is afraid of the shooter. He states he is mainly fearful for the safety of his family. He goes so far as raising the possibility of witness protection. His fear is vague and essentially unarticulated, but it points directly at the shooter who he referred to as Munkzz. Through that alleged nickname connection, as well as other circumstantial evidence, the jury will likely view Mr. Mathuvan’s fear as being that he and his family will be harmed by Mr. Sivakumar if Mathuvan says what he observed to the authorities or testifies about it in court. The jury could see this fear to be so extreme that Mr. Mathuvan is willing to contradict himself, fake a loss of memory, and commit perjury.
[85] This raises a significant potential for prejudice for Mr. Sivakumar. By spectre and suspicion, the jury may view Mr. Sivakumar, for reasons unknown to them and perhaps even unknown to Mr. Mathuvan, to be the type of person who would be willing to commit acts of violence in retaliation. The jury may conclude from this that Mr. Sivakumar is the type of person that would have likely committed the offences that he is charged with.
[86] Even with a jury instruction against this improper use of bad character, there is a strong likelihood that this prejudice may not be properly mitigated: see Shephard, at paras. 93-99.
[87] In terms of probative value, little will be lost if this motivation is not specifically explored in front of the jury. I appreciate that the motive of fear by a witness can be properly admissible in many cases. Here, the impairment of the Crown’s case if it cannot explore this motive in full detail, will not be great. The jury will still have Mr. Mathuvan’s inconsistencies in his various accounts, significant as they are. They will also have his purported lack of recall placed in the context of the other statements he has given, under oath or otherwise. While the Crown will not be able to rely on the second recorded statement as specific evidence of the fear they wish to allege for his lack of candour, the Crown can still argue that he is a reluctant and untruthful witness at trial and argue for reliance on his out-of-court statement. In turn, the jury will be able to properly assess the evidence that he gave in chief where he claimed a lack of recall.
[88] I exercise my residual discretion in favour of excluding this second statement.
Justice S. Nakatsuru
Released: November 21, 2022
COURT FILE NO.: CR-21-30000336
DATE: 20221121
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
SARANRAJ SIVAKUMAR
Defendant
ruling on the admissibility of evidence
Justice S. Nakatsuru
Released: November 21, 2022