



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sivasubramanian, 2021 ONCA
    61

DATE: 20210128

DOCKET: C67129

Fairburn A.C.J.O, Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sinnarajah Sivasubramanian

Appellant

Breana Vandebeek and Mark C. Halfyard,
    for the appellant

Erica Whitford, for the respondent

Heard: January 25, 2021 by
    video conference

On appeal from the conviction entered by
    Justice B.A. Allen of the Superior Court of Justice, dated February 22, 2019.

REASONS FOR DECISION

[1]

The
appellant was a photographer who worked
    on photo shoots with teenage girls for certain age-related ceremonies. Following
    a judge-alone trial, the appellant was found guilty of multiple counts of
    invitation to sexual touching and sexually touching two of his
    fourteen-year-old clients during those photo shoots in 2001.

[2]

This is an appeal from conviction. We dismissed the appeal with
    reasons to follow. These are those reasons.

[3]

The appellant raises two grounds of appeal, both of which arise from the
    trial judges reasons for judgment. The first relates to the defence suggestion
    of a motive to fabricate and the second to collusion.

[4]

The appellant argues that the trial judge erred by misapprehending the
    appellants position when it came to the complainants alleged motive to
    fabricate. That motive was said to arise from the fact that almost 15 years
    after the alleged events took place, the complainants had become involved in an
    organization established to assist victims of sexual abuse. The defence maintained
    that the complainants connection to that organization furnished them with a
    motive to lie about the sexual contact with the appellant because this would
    have assisted with the organizations profile.

[5]

The appellant argues that the trial judge failed to grasp this defence
    position. Instead of confronting the suggested foundation for the motive
    alleged, the trial judge is said to have wrongly focused upon what she
    perceived to be as an absence of any animus toward the appellant. By focusing
    upon an absence of animus, the appellant contends that the trial judge missed
    the point, thereby failing to resolve what was really in issue. We do not
    accept this submission for two reasons.

[6]

First, we read the trial judges reasons as having confronted the
    defence suggestion of a motive to fabricate arising from the connection to the
    sexual assault organization. For instance, the trial judge said: I do not
    accept as a reason to fabricate, the defences contention that TE complained to
    the police just to support Ms. J.S.s project.

[7]

Second, read in context, the trial judges reference to an absence of
    animus toward the appellant makes sense. At its core, the defence position at
    trial was that the complainants had fabricated the allegations to help out the
    sexual assault organization. The effect of this submission was that the
    complainants were willing to falsely accuse the appellant in the interests of the
    organization. We need not express the obvious seriousness that would underlie
    any such false allegation or the drastic consequences that could flow to the
    appellant from such a lie. Therefore, it stood to reason that if the
    complainants were willing to falsely accuse their prior photographer of these
    crimes, they must have harboured some ill-will toward him. It is within that
    context that the trial judges comments about the lack of animus must be read.

[8]

The appellant also suggests that the trial judge improperly used the absence
    of evidence of motive to fabricate as a means by which to enhance the
    credibility of the complainants. To the contrary, the trial judge gave detailed
    reasons for accepting the complainants credibility, none of which related to
    the absence of a motive to fabricate.

[9]

Finally, the appellant argues that the trial judge erred in
    misapprehending the defence position as it related to collusion and in finding
    that there was no air of reality to the suggestion of collusion.

[10]

The
    defence position was that the complainants and their friend had colluded, not
    in an intentional way, but in a way that raised the spectre of unconscious
    collusion, such that they had unwittingly infected one anothers evidence. The
    appellant argues that, at a minimum, there was an air of reality to this
    suggestion, rooted in the fact that the complainants and their friend knew one
    another, shared school venues, communicated on occasion and, to varying
    degrees, worked together to form the organization geared at providing support
    to sexual assault survivors and then worked together at that organization.
    Based on this evidence, there was said to be at least an air of reality to the
    possibility of inadvertent collusion.

[11]

While
    the trial judge may not have specifically referred to the air of reality test, she
    must have come to the conclusion that there was an air of reality because she
    spent some time explaining why she was satisfied that there had been no
    collusion.

[12]

The
    trial judge also understood the defence position as it related to collusion.
    She understood the essential nature of the complaint  an inadvertent tainting
    of one anothers evidence  and rejected it: I do not accept the defences
    argument about distortion and false memory. As she said: On the question of
    tainting of TEs and TSs 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.  As the trial judge later explained over the course of three
    paragraphs in her reasons, at most the complainants had an opportunity to
    collude, but did not.

[13]

It is for these reasons that the appeal was dismissed.

Fairburn
    A.C.J.O.

David
    Watt J.A.

Grant
    Huscroft J.A.


