



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thyagarajah, 2017 ONCA 825

DATE: 20171027

DOCKET: C62689

Laskin, Feldman and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Varatharajah Thyagarajah

Applicant/Appellant

Marc Schiffer, for the appellant

Peter Fraser, for the respondent

Heard and released orally: October 23, 2017

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 26, 2016 by Justice Kenneth Campbell of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on May 6,
    2014 by Justice Mavin Wong of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault. His appeal to the summary
    conviction appeal court was dismissed. He now seeks leave to appeal to this
    court. He raises four issues on which he seeks leave.

[2]

First, he seeks leave to introduce as fresh evidence the expert opinion
    of a doctor on multiple system atrophy, a disease that the complainant suffered
    from.

[3]

We deny leave to admit this fresh evidence. We accept that the doctor is
    an acknowledged expert on neurodegenerative disorders, including multiple
    system atrophy. But even if we do not give effect to the lack of due diligence,
    the proffered evidence does not satisfy the
Palmer
test
[1]
.

[4]

The doctor did not review any of the complainants medical records. He
    did not have any information about whether the complainant was on medication. And
    he did not review the transcript of the trial or the complainants videotaped
    statement. The doctors two page general opinion letter could not reasonably
    have affected the issue for which it was tendered: whether the complainant
    consented to the sexual activity. Leave to introduce the fresh evidence is
    refused.

[5]

Second, the appellant seeks leave to introduce the complainants
    criminal record, which was not disclosed to the defence before trial. He argues
    that there is a reasonable possibility the criminal record could have affected
    the result at trial or the fairness of the trial. We disagree.

[6]

Undoubtedly, the complainants criminal record should have been
    disclosed to the defence before trial. The Crowns failure to do so was
    inadvertent. But the complainants record consisted of a single entry for
    uttering a forged document for which she was convicted over 20 years before the
    trial when she was a young woman, and for which she received a suspended
    sentence.

[7]

We see no reasonable possibility that this dated record could have
    affected the trial judges assessment of the complainants credibility or the
    result at trial. Nor in our view could it have affected the fairness of the
    trial. The complainant died before she could testify at trial. Thus, the record
    could not be used to impeach her evidence on cross-examination. At most, it
    would have been another argument in support of the appellants contention that
    the complainants evidence should not be believed. In our view the
    unavailability of the record at trial would have affected trial fairness or the
    defences strategy minimally or not at all.

[8]

Third, the appellant submits that the summary conviction appeal court
    judge erred in law in upholding the trial judges finding that the
    complainants videotaped statement was admissible under the principles in
Khelawon
[2]
.

[9]

The appellants submission on this issue has two branches: first, the
    summary conviction appeal court judge erred by failing to hold that the
    material inconsistency in the complainants statement about the sexual activity
    undermined the threshold reliability of her statement; and, second, in the
    light of the Supreme Court of Canadas recent decision in
Bradshaw
[3]
,
    released after the trial and summary conviction appeal, both the trial judge
    and the summary conviction appeal court judge erred in holding that the DNA
    evidence corroborated the complainants hearsay statement: see
Bradshaw
at para. 45. We do not accept the appellants submissions.

[10]

On
    the first branch of his submission, both the trial judge and the summary
    conviction appeal court judge were well aware of the material inconsistency in
    the complainants evidence. They expressly referred to it. But this material
    inconsistency was only one aspect of a much larger evidentiary framework on
    which both judges relied in finding that threshold reliability was established.
    That was their call to make.

[11]

On
    the second branch of the appellants submission, the Crown fairly acknowledges
    that the DNA evidence standing alone could not corroborate the complainants
    evidence that she did not consent to the sexual activity. However, the DNA
    evidence was only part of a much broader evidentiary record about the
    circumstances of the sexual assault. Those circumstances included the
    complainant being found half naked on the bathroom floor, crying. The evidence
    taken as a whole corroborated the reliability of the complainants statement:
    see
Bradshaw
at para. 4.

[12]

Thus,
    we see no error in law in the summary conviction appeal courts conclusion,
    upholding the trial judges finding that the complainants videotaped statement
    met the standard for threshold reliability.

[13]

Fourth,
    the appellant submits that the summary conviction appeal court judge erred in
    law in upholding the trial judges finding that there was no s. 11(b) of the
Charter
[4]
violation.

[14]

The
    appellant does not assert that the trial judge erred in her analysis under the
Morin
framework
[5]
.
    He argues that
Jordan
[6]
compels a different result.

[15]

We
    disagree. The trial in this case took place and was completed before
Jordan
was released. Thus, the
Morin
framework applies: see
Cody
[7]
at para. 71. The appellant must, therefore, fail on this issue.

[16]

Accordingly,
    the appeal is dismissed.

John Laskin J.A.

K. Feldman J.A.

R.A. Blair J.A.





[1]

Palmer v. R.
, [1980] 1 S.C.R.
    759, at p. 775.



[2]

R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.



[3]

R. v. Bradshaw
, 2017 SCC 35.



[4]

Canadian Charter of Rights and Freedom
, Part I of the
Constitution Act, 1982
, being Schedule B to
    the
Canada Act 1982
(U.K.), 1982, c. 11.



[5]

R. v. Morin
, [1992] 1 S.C.R. 771, at pp. 787-788.



[6]

R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.



[7]

R. v. Cody
, 2017 SCC 31.


