WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (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.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
G.P.A.
Before: Justice Peter T. Bishop
Heard on: November 22, 2016 and January 24, 2017
Reasons for Judgment released on: February 14, 2017
Counsel:
- Bailey Rudnick/Peter Keen — counsel for the Crown
- Mark Van Walleghem — counsel for the defendant G.P.A.
BISHOP J.:
[1] Charge
1This matter comes before me by way of G.P.A. being charged that on or about the 27th day of July, 2016 at the Municipality of Sioux Lookout, in the Northwest Region, did commit a sexual assault on D.B., contrary to Section 271 of the Criminal Code.
Evidence of Amanda Maure
2Ms. Maure is an Ontario Provincial Police Constable with two years' experience.
3On July 27, 2016 she attended at 64 Prince Street in Sioux Lookout as a result of a complaint of about the accused being intoxicated and the complainant wishing him to be removed. En-route to the detachment, she received another call regarding a sexual assault charge relating to the accused.
4The sexual assault occurrence allegedly happened less than a block away from Mr. G.P.A.'s arrest point. Mr. G.P.A. was highly intoxicated, had slurred speech, was stumbling and unsteady on his feet and he had a purple colour to his lips and had a bottle of wine without the cap on stuck in his pants.
5Another officer transported Mr. G.P.A. to the detachment and as a result of utterances Mr. G.P.A.'s clothes were seized and placed in a dry cell.
6Constable Maure then attended at the complainant's residence who was there with his father. The complainant was shaking and crying and hyperventilating. The complainant's father came to the detachment to discuss matters. Another individual, a community support worker, Joyce Haynes was also present.
7The complainant was taken to the hospital to have a sexual assault kit completed.
8At 10:46 p.m. this officer woke up Mr. G.P.A. and arrested him for sexual assault.
9He was read his rights to counsel and a swab from his penis was taken by two male officers.
10After speaking to duty counsel the accused uttered "that little fucker told me not to say anything".
11This officer walked with the complainant to a church area and described the route that was taken with himself and the accused.
12They passed through an area where street people regularly drank in behind a church with bushes and a home was right there.
13The front of the church is on Fourth Avenue and the back of the church is off Meadwell Street.
Evidence in Cross Examination
14This officer stated there was another church further down about four blocks away. She believed that it was the New Life Assembly Church and/or the House of Worship.
Evidence of Jeremy Lennox
15Jeremy Lennox is an Ontario Provincial Police Constable and was involved in this investigation.
16On July 28, 2016, the day after the alleged occurrence, he retrieved a swab taken from the accused's penis and entered that piece of evidence on to the computer system and sealed it using a Center Forensic Sciences procedure.
17This officer photographed a path from the apartment complex on T[…] Avenue going North on Wide Street, then down Meadwell Drive, finally entering the property that he believed was the Calvary Baptist Church, in a bush area.
18This officer walked with the complainant and followed him taking pictures. Photographs taken were entered as Exhibit 1 on a cd.
19The walk ended at the Calvary Baptist Church at the intersection of Wide Street and Meadwell Drive.
20A map was also filed showing the path were the complainant walked and was filed as Exhibit 2.
21The officer estimated that it was about 750 metres from the T[…] Avenue where the complainant lived to the area between the church and the residence.
Evidence in Cross Examination
22This officer corrected himself by stating that the church was actually the Cornerstone Christian Fellowship Church. The Calvary Baptist Church was approximately a block away.
Evidence of Cory Markle
23Cory Markle is an Ontario Provincial Police Constable who was working on July 27, 2016.
24At approximately at 8:05 p.m. he received a complaint of a liquor license violation at 64 Prince Street involving the accused as he was intoxicated.
25At 8:11 p.m. he received a second communication that there was an alleged sexual assault concerning D.B.
26He stated that he had no grounds to arrest Mr. G.P.A. for sexual assault but when he found him, Mr. G.P.A. was intoxicated with an open bottle of Kelly's wine in his pants; there were wine stains on his lips and alcohol on his breath.
27He located Mr. G.P.A. approximately one street over from the church which was about a two minute walk away.
28He arrested Mr. G.P.A. for safety concerns pursuant to Section 31.4 of the Liquor License Act. He was searched and his rights to counsel were read; he was not questioned about the sexual assault charge.
29Mr. G.P.A. made statements to the effect "don't worry about that guy", and "we were supposed go gay". This was repeated four times and then stated "and do you have a problem with that"; "we couldn't go me and that guy". Mr. G.P.A. was extremely intoxicated mumbling to himself and speaking to the window of the police cruiser.
30At 8:20 p.m. he was lodged at the detachment and his clothing was seized for a possible Section 271 charge.
31This officer understood the accused when he was talking to the window and he was rambling on. He had no reasonable and probable grounds to arrest Mr. G.P.A. at that time for sexual assault.
32After a voir dire, the statements were ruled voluntary and admissible.
33Back at the attachment Mr. G.P.A.'s clothes were seized as he was wearing a black shirt, blue jeans, socks and shoes with a yellow orange string.
Evidence of Joyce Haynes
34Ms. Haynes is a counsellor employed with Community Living and resides in the community employed as a support worker.
35The complainant lives in a complex and at approximately 8:05 p.m. he banged into, or broke in, or busted open the kitchen door and he was visibly upset, hyperventilating, shaking and breathing very heavy.
36She noticed that the clothing on his knees was dirty.
37The complainant asked for his father and when he arrived the police were also called.
38She was aware that the complainant has been diagnosed with Fetal Alcohol Syndrome and she works with him on issues trying to integrate him into the community.
39The complainant lives in an apartment with A.L. and Ms. Hayes is involved with support life skills, the residence is staffed all day with one worker seven days a week.
Evidence of D.B.
40D.B. is 30 years of age, and lives in a community supported residence.
41He stated that on July 27, 2016, he had coffee and was drinking with his friend J.B. and consumed four beer.
42He left his apartment by the back door and was walking on the pathway when he saw G.P.A.
43Mr. G.P.A. called his name and he turned around and observed a bottle of Kelly's wine with Mr. G.P.A.. Mr. G.P.A. offered him some to which he said "no, I've had enough". Mr. G.P.A. asked him to follow him, go up the hill by the church.
44He stated he was forced to go with Mr. G.P.A. as he was persuaded by Mr. G.P.A. with the bottle. Mr. G.P.A. cracked open the bottle and took his pants off and told him to suck his cock. He said "no, I'm not that kind of person" and said "stop".
45He was in front of Mr. G.P.A. and was kneeling as Mr. G.P.A. put his hands on his shoulders and forced him to the ground.
46Mr. G.P.A. made him suck his cock and forced his head down with his left hand. He described Mr. G.P.A. as being pretty drunk and he pushed him away and told him to stop.
47He stepped up to his face and said "that's enough I'm not doing this anymore".
48He said "I'm going to get help" and ran home. He was very shocked; he did not want to do this and did not ask Mr. G.P.A. to do this.
49He talked to Joyce Haynes and found it very difficult to describe this occurrence.
Evidence in Cross Examination
50He stated that he had never seen Mr. G.P.A. before but he told Ms. Haynes that it was G.P.A.. His roommate somehow knew Mr. G.P.A. and described him as a native with grey hair and drinks a lot.
51He stated that he is the only one he knows about of that description and he is the only one that his roommate would talk about.
52He confirmed that he had four beer at J.B.'s and left by 4:00 – 4:30 p.m. and met up with Mr. G.P.A. right away and Mr. G.P.A. called him "D." even though they had never met before.
53He thought that he had enough to drink with the beer and did not want any Kelly's wine and he told Mr. G.P.A. that he was not a bad person and didn't know why he went with him.
54They got to a spot to drink and he was tricked by Mr. G.P.A. as he gave him some Kelly's wine to drink.
55Mr. G.P.A. told him to take four shots but he only took three.
56He told the police that he had no Kelly's wine.
57He described the place where this happened as the white church on Meadwell and Fourth.
58He further said that he had four mouthfuls of Kelly's wine after having the four beer. He had a little bit of a buzz-on after the four beer but was intoxicated after the drinking the four mouthfuls of Kelly's wine.
59He described the mechanics of this occurrence and he said he just let Mr. G.P.A. do it as he was pretty intoxicated. He did not want to push Mr. G.P.A. away as he felt he would be charged.
60He was pushed down by Mr. G.P.A. who put the bottle of wine down and he was on his knees and wanted another shot but Mr. G.P.A. put the cap on. During the episode he saw his life flash before his eyes and he did not want this to happen.
61He stated that he did not know what was happening and described Mr. G.P.A. as wearing a belt and he could hear it jingling as he unbuckled it. He felt he had to suck Mr. G.P.A.'s cock but was not that type of person to do that as he was a good person. He did it anyways.
62Mr. G.P.A. put his cock in his mouth with his right hand and also had his right hand on the bottle of wine.
63D.B. had difficulty testifying and said he did suck Mr. G.P.A.'s cock once.
64During this whole episode, he didn't realize what was happening. He confirmed again that he met Mr. G.P.A. two minutes after he left his apartment approximately 4:00 p.m. He told Ms. Haynes that the church was at Prince and Third Street and not a different church.
65He identified Mr. G.P.A. in the prisoners dock and he looked exactly the same as he did on the day of this occurrence stating he had grey hair.
66After he left the accused, Mr. G.P.A. did not stop him, he was not forced to stay.
67He further described that Mr. G.P.A. had a hard time achieving an erection as he put his penis in his mouth. He repeated he didn't know what was going on and that his whole life was flashing before his eyes. He was seeing his family, his sister, his Mom and his Dad and seeing what was G.P.A. was doing at the same time but it was too late for him to react. He stated that he did not react fast enough. He then stated that he doesn't drink and did not remember saying no.
Position of the Crown
68The Crown cautioned the court to not draw any conclusions on how people act during sexual assaults or traumatic events, one should not apply common expectations but must assess the evidence based on the individual.
69The complainant was direct, forthright and he was, according to Ms. Haynes, hyperventilating and was very upset after this happened. The same observation was made by Constable Maure. Ms. Haynes indicated that he had dirt on his pants by his knees.
70The Crown submits that there was corroboration to support D.B.'s version of events and directs the court to the drunken statements uttered by Mr. G.P.A. as "don't worry about that guy we were going to go gay" and there was dirt on his knees and the DNA shows that there are at least two male samples from the penile swab.
Position of the Defense
71The defense argued that the statement of the accused and the evidence of the complainant do not amount to corroboration but really drunk talk, talking to a window in a police cruiser.
72Timing is an issue as the first complaint about an intoxicated individual was at 8:05 p.m. and a second allegation of sexual assault at 8:11 p.m. This is contradicted by the complainant's evidence that the alleged sexual assault occurred between 4:00 – 4:30 p.m. and not four hours later. The complainant stated that he ran right home after the occurrence. The defense also states that the complainant's evidence that his life was flashing before his eyes is really a cliché and is not what he described in evidence.
73The complainant was not able to explain how he was forced to suck the accused's cock. He also admitted in cross examination that he was intoxicated and also stated that he doesn't drink. Notwithstanding the contradiction of having four beer and four mouthfuls of Kelly's wine.
74The defense directs the court to the mechanics of the sexual assault as described by the complainant are problematic as the complainant is much taller than the accused and the positioning of the hands and how the accused held the bottle of wine purporting to commit the sexual assault is confusing boarding on nonsensical.
75The accused elected not to call any evidence and rely upon the high burden of proof beyond a reasonable doubt.
Decision
76Having heard all of the evidence, I am finding that the Crown has not proven the sexual assault beyond a reasonable doubt for the following reasons:
The complainant by his own admission was intoxicated and the accused was extremely intoxicated.
There was a large timing gap from when the complainant states that this happened namely between 4:00 – 4:30 p.m. and the time that it was reported shortly after 8:00 p.m. There is no explanation of where the complainant was and who he interacted with for that four hour period.
The complainant states that the occurrence happened at a location inconsistent with the location that the police investigated.
On August 5, 2016 the police took four samples for DNA analysis. As follows:
- Oral swab from complainant
- Penile swab from the accused
- A swab from the bottle of Kelly's wine
- A DNA reference sample from the complainant
The first analysis was completed on August 29, 2016, the oral swab was a single source and no DNA profile other than attributed to the donor.
The penile swab revealed at least two contributors but no DNA profile suitable for comparison.
On November 8, 2016 a further analysis was done with respect to oral swab from the wine bottle which showed the accused as a donor with at least two contributors.
The conclusion is that there were other contributors to the penile sample and the wine bottle sample but it has not been proven that the complainant was a contributor.
D.B. indicated that the accused was wearing a belt but no belt was seized by the police, but rather a black shirt, blue jeans, socks and shoes with the yellow-orange string. D.B. clearly stated that he heard the jingle of the accused removing his belt as he pulled his pants down.
The identification of the accused by D.B. is problematic and raises a reasonable doubt as another individual (the complainant's roommate who was not present during the occurrence) identified the accused as the perpetrator. D.B. has adopted this conclusion from his roommate. D.B. described the perpetrator as having grey hair and of native ancestry but an observation of the accused in the prisoner's box revealed that Mr. G.P.A.'s hair is predominately dark, bordering on black with grey fringes. It is also a concern that the complainant identified the accused as the one in the prisoner's box as that is where he expected him to be. This type of identification is manifestly unreliable.
Further the complainant stated that the perpetrator called his first name even though he had never met the accused. This raises a concern that another individual later in time, and not the accused may have been involved in the occurrence.
The complainant's statement that when this occurrence happened his life flashed before his eyes is not consistent with what he described as seeing his father, his mother and his sister and the accused performing the alleged fellatio.
There was no expert evidence as to the effect of D.B.'s ability to give cogent evidence and remember facts as a result of suffering from Fetal Alcohol Syndrome. I must take D.B.'s evidence at face value and with all of the contradictions it would be unsafe to convict the accused on D.B.'s evidence alone.
In order for the evidence to be corroborative or confirming there must be independent and material evidence. Material means that the evidence confirms the accuracy of relevant aspects of the suspect evidence. It does not have to directly implicate the accused. The issue is whether collectively the individual items of evidence noted are capable of providing comfort to the conclusion that the evidence of the suspect witness implicating the accused is accurate. I cannot so conclude. These principles were enunciated in R v. Khela, 2009 SCC 4, 238 CCC (3d) 489 S.C.C. and R v. Kehler, 2004 SCC 44, 181 CCC (3d) 1 S.C.C.
I have serious concerns about the corroboration as inferred by the Crown. There was no evidence as to whom the accused was speaking about when he made his drunken utterance to the police officer in the cruiser. The dirt on the complainant's knees is not by itself corroborative of the act that was described by the complainant.
The accused utterance "that little fucker told me not to say anything" suggests a smaller person than the complainant and that another individual initiated fellatio with the accused.
77In all of the circumstances, I am very suspicious about the accused's involvement in this matter and am finding that the Crown has not proven all the elements of the offence beyond a reasonable doubt and as such a not guilty verdict will enter.
Released: February 14, 2017
Signed: "Justice Peter T. Bishop"