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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-06-30
COURT FILE No.: Central West Region 998 47105832
BETWEEN:
HIS MAJESTY THE KING
— AND —
Todd Snow
Before Justice J. De Filippis
Heard on March 31, April 1 – 2, and June 6, 2025
Reasons for Judgment released on June 30, 2025
Mr. K. Regimbal — counsel for the Crown
Mr. P. Boushy — counsel for the accused
Introduction
1The defendant was charged with sexual assault, failure to comply with probation, and failure to comply with a peace bond. The failure to comply charges involve failing to keep the peace and be of good behaviour. They are proven, or not, based on the outcome of the sexual assault allegation. The Crown proceeded by Indictment and the defendant elected trial in the Ontario Court of Justice.
2Among the Orders I issued in this case is a ban on publication of any information that would identify the complainant. She and the defendant are strangers. As such, counsel agree that the defendant’s name need not be anonymized.
3I also granted a Crown motion that the complainant testify remotely and with the aid of a support person. I heard from L.H., a social worker who has been assisting the complainant for the past two years with her fetal alcohol spectrum disorder (FASD) and homelessness. L.H. explained the impact on the complainant of being in the same room as the defendant. I concluded that it is probable that the complainant will not be able to give a full and candid account of her evidence in the physical presence of defendant. In testifying by CCTV, she will not see the defendant. However, everyone in the courtroom, including the defendant, can see her.
4The parties agree to the following facts: The date of the allegation is September 18, 2024. The defendant was bound by a probation order and peace bond with terms that included keep the peace and be of good behaviour. The defendant was arrested on October 20, 2024. Photographs taken by police at the scene of the events and from the defendant’s NICHE profile are authentic and accurate. NICHE is a police records management system.
5The defendant was interviewed by police the day following his arrest. The Crown tendered this statement to police for use in cross-examination and as a fabricated statement providing independent evidence of guilt. The admissibility of this statement is not challenged by the Defence. It is conceded to be voluntary. The Defence does not concede that it is a fabricated statement. Normally a ruling on this point is made after a voir dire and before the Defence election to call evidence. In this case, the parties were content that I decide the issue along with all other matters after final submissions.
6It is not in dispute that the complainant and defendant met and engaged in sexual activity on the date and place alleged. The complainant asserts that it involved intercourse, without her consent. The defendant maintains that it was limited to oral sex and that it was consensual. At the time, both parties were homeless.
7I find the defendant guilty. These are my reasons.
Evidence Given by the Complainant
8On the day in question, in the late afternoon, the complainant met the defendant on the steps of the Philpot Church at Park St in Hamilton. He told her his name was Snow and that he was 65 years old. He followed her to her tent, and they went inside and talked for 45–60 minutes. During this conversation, the defendant asked the complainant to help him set up his tent. She agreed. They walked towards Sir John A. MacDonald High School and stopped at a grassy area near a big green electrical box. The complainant identified photographs of this area, later taken by police, and pointed to a knife, pillow, sleeping bag, and tent poles belonging to the defendant. She also identified a white hoodie and socks that belonged to her.
9The parties discussed setting up a tent for the defendant. Suddenly, the defendant grabbed her by the head, “tore down” her pants, and pushed her in “a downward dog position”. The complainant added these details:
…that’s when I bent over and I was like, are you kidding me, you’re 65….he grabbed me by the head and pushed me down in, face in the dirt, and said, take it like the bitch that you are and that’s when he vaginally penetrated, yeah.
I’m trying to, like push him with my hands off, like, forcing, try to get him off me because it’s hard to when someone’s on your back kind of in the way, right, in that kind of position. It’s really hard to – tried to kick him, try to get him in the nuts but I couldn’t.
10This event lasted about 15 minutes. The defendant did not use a condom. The complainant does not know if he ejaculated. She was not under the influence of drugs or alcohol – “I was clean as a whistle”.
11The complainant felt “scared, really scared and helpless” during this event. When it was over, the defendant said, “that was insanely good, now you can go”. The complainant kicked him and ran away. She said, “I just left everything behind, and I just grabbed – like I thought they were my pants, but I guess they weren’t, but I pulled on something and I just ran towards the Hub”. The Hub is a drop-in centre for homeless people at the Salvation Army. On arrival there she told staff she had been “raped”. The police were called, and she was taken to hospital “to get the sexual kit done”. She provided a description of the defendant, including his tattoo.
12The complainant has been previously convicted of assault and a firearms offence.
13She testified that while being penetrated in the downward dog position, she could not say anything because her face was in the dirt. She could not recall telling the police she was screaming, “get the fuck off me”. She denied the suggestion that she and the defendant had consumed crack cocaine and fentanyl or that she performed fellatio, or that she stole his wallet, containing $300, after he had passed out.
14The complainant initially testified she did not recall being “beaten up” after this incident and before going to social worker with a report of sexual assault. When pressed on this point she said she was attacked on an unknown date but denied the assailants were punishing her for theft of the defendant’s wallet. She denied this was the motive to fabricate the sexual assault.
15When Defence counsel concluded cross-examination by suggesting the complainant and defendant had engaged in consensual, mutual, oral sex, she replied, “No, I got fucking raped”. When counsel pressed this point and added that both parties had consumed drugs, the complainant said, “You do not understand, he raped me. I did not consent. Get that through your goddam skull. I did not say yes. I did not say no. I did not steal his wallet”.
Other Prosecution Evidence
16PC Trent Wright was dispatched to investigate this allegation of sexual assault. While securing the grassy area in question, at 130 York Blvd, he was approached by a man who identified himself as Karnel Jack. Noting the police presence, Mr. Jack asked if “this is about the girl and guy that were back there”. Realizing this man was a witness, PC Trent took a statement from him. The officer also used NICHE and found a police record showing that the defendant fit the description given by the complainant, including tattoos. The officer then proceeded to the hospital and took possession of the sexual assault kit with respect to the complainant.
17PC Dawn Spencer is one of the scene of crime officers (SOCO) who attended at the area in question. She authenticated the photographs taken of the area, previously put to the complainant. She pointed to a number of items on the ground including a white hoodie and socks that the complainant reported leaving behind when she fled. The officer also located a glass pipe box and knife on the green electrical box.
18PC Spencer received the sexual assault kit from PC Wright. It included external genitalia and vaginal swabs taken from the complainant. She submitted these to the Centre for Forensic Science (CFS). The officer subsequently received a biology report from CFS that revealed the presence of male DNA on the external genitalia and vaginal swabs. Accordingly, the officer executed a warrant to obtain DNA from the defendant. In March 2025, one week before the start of this trial, PC Spencer received a biology report from CFS.
19At the time of these events, Karnel Jack was homeless and living at the Salvation Army accommodation nearby. On the day in question, he was “sunbathing at Sir John A McDonald School on York Blvd and drinking beer”. As it “started getting chilly”, he went to the Salvation Army to put on warmer clothes and made his way back to the same spot. He testified, “that is when I saw [pointing at the defendant in Court] Mr. Snow”. He had seen the defendant before when he was sunbathing. Mr. Jack came closer and saw “a lady slouched over with head down between her legs, her face to the ground, her back exposed and Mr. Snow sitting upright”. Both were fully clothed, but the woman’s top rode up her back and he saw a tattoo on her lower back. The green hydro box otherwise obstructed his view. The defendant told Mr. Jack to “leave me and my girlfriend alone and go somewhere else”. The woman said nothing and did not move.
20In cross-examination, Mr. Jack said that when he first saw the defendant with woman, the latter was “on her stomach” and the former was “sitting on his butt”. He did not see either person consuming drugs and believed the woman had done so because she did not move and there is much fentanyl and crack in this area.
21About 20 minutes later, Mr. Jack returned to the Salvation Army. The woman he had seen with the defendant also arrived. She was upset and told a staff member she had been raped. Sometime after, the defendant arrived. Mr. Jack said that when “he looked at me it was like he saw a ghost, he was shocked”.
22February 19, 2025, DC Ryan Tweedle executed a DNA warrant and took a sample from the defendant by “finger prick”. This was forwarded to the Centre for Forensic Services.
23Kimberly Sharpe is a forensic biologist and qualified as an expert in DNA analysis. She received the sexual assault kit with respect to the complainant containing the external and vaginal swabs taken from the complainant. She also received the DNA sample taken from the defendant. There is no need to review her report or trial testimony in detail because the results are not controversial.
24Ms. Sharpe concluded that the external genitalia swab revealed a mixture of DNA profile from the complainant and one male and that the vaginal swab revealed male DNA. The defendant cannot be excluded as a contributor to the mixture from the external genitalia swab. The STR-DNA results are estimated to be 160,000 times more likely if they originate from the complainant and defendant than the complainant and an unknown person unrelated to the defendant. The defendant cannot be excluded as the source of male-specific DNA profile (Y-STR) from the vaginal swab. The Y-STR DNA results are estimated to be 2000 times more likely if they originate from the defendant than from an unknown male unrelated to him.
25Ms. Sharpe testified that 2000 times is the highest available likelihood ratio for Y-STR testing and provides strong support for conclusion that the DNA is from the defendant. She noted that sources of DNA include blood, semen, saliva, muscle, skin, and fecal matter. Ms. Sharpe cannot identify the source of the male DNA in both swab samples. She agreed with the suggestion that the male DNA in this case could be from saliva.
Evidence Given by the Defendant
26The defendant is 61 years old. He was born in New Brunswick. Defence counsel began his examination in chief by introducing the criminal record. The defendant has 192 convictions. It was noted that none of these convictions is for sexual assault. The defendant added that “I don’t hit women, I was not brought up like that”.
27According to the defendant this is “what really happened”:
I was behind the Salvation army and found a bag of fentanyl and saw a girl who I know does fentanyl and showed it to her and said do you want it and she said yes and I said I need help setting up my tent. She does the drug and she slumped over and I shook her and she said it was good, can I have more and I did and her eyes lit up and she said ‘that stuff makes me horny and I will give you a blow job’. I don’t get a woman every day so I said yes and we went into the sleeping bag and we had oral sex and fell asleep. When I woke up and saw that my wallet and fentanyl was gone. The next day people told me she got beat up real bad.
28The defendant clarified that the complainant smoked fentanyl and he smoked crack cocaine. He insisted that, “I never had my penis inside her once. I did not sexually assault her. The oral sex was on consent.” The following exchange followed:
Defence counsel: Again, you have no sexual assault convictions
Defendant: Yes, there are so many girls out there hooked on fentanyl who will do what you want, why would I need to do this
29The defendant testified that the oral sex lasted “three minutes, it doesn’t take me long to ejaculate”. He added that he did not see a black guy while he was with the complainant [i.e. Mr. Jack]. He acknowledged that he testified to consensual, mutual, oral sex and that in his statement to police he asserted that he had not touched her. In explaining this, he said, “I meant I did not rape her”.
30The Crown confronted the defendant with the prior statement in question. During a 40-minute interview conducted the day after his arrest, the defendant repeatedly asserted he had not touched the complainant. These excerpts are representative:
Q: Did you have sex with her?
A: No. I wouldn’t touch her.
Q: [So] Nothing happened at all.
A: No. Nothing happened.
Q: No sexual…
A: Nothing happened whatsoever.
Q: Do you know how DNA works?
A: There’s nothing with my DNA on her.
31At trial, the defendant explained his prior statement to the police in these terms: “I meant I never put my dick inside her…..I never touched her with my dick….there would be no DNA on her from my penis”. When asked why his DNA was found not only on the external genitalia swab but also on the vaginal one, the defendant replied that he did not know, and then added, “it would be my saliva”.
Submissions
32The Defence position is that the complainant traded sex for drugs and that both parties were intoxicated as they engaged in mutual consensual oral sex. The complainant then stole the defendant’s wallet and left. The DNA found on the swabs could have been deposited by saliva, thus confirming the defendant’s version of events. Counsel relies on Mr. Jack as further support for the defendant’s testimony; he believed the complainant was high on drugs.
33Defence counsel also submits that even if the defendant’s testimony is rejected, the prosecution must fail because the complainant is neither credible nor reliable. In this regard, there is no dispute that she has been a drug addict and counsel argues her angry insistence that she was sober at the time should not be believed. Apart from anger, counsel points to the complainant’s demeanour while testifying as the mark of an untruthful witness; she often looked away, paused, and fidgeted.
34In arguing that the defendant’s evidence be rejected the Crown points to his lengthy record for crimes of dishonesty and numerous inconsistencies between his prior statement to police and trial testimony.
35The Crown submits the complainant’s testimony ought to be accepted as truthful and accurate. In this regard, certain statements are markers of truth: She could not scream because her mouth was “full of dirt”. The defendant said, “take this like the bitch you are” and “that was insanely good”. Counsel adds that the location of the complainant’s pants and socks as depicted by the SOCO photos is consistent with the complainant’s account of the forceful removal of her pants.
36The Crown added that Mr. Jack’s testimony undermines that of the defendant and supports the complainant. He described a woman who was slouched over such that he could not see her face. This position caused the complainant’s top to ride up her back and expose a tattoo. The Crown submits that Mr. Jack is honest but mistaken in his belief the complainant was high on drugs. This belief is based on the fact she was not moving and because of “the area”. Her lack of movement is consistent with the fact she was pushed face first into the ground by the defendant. That the complainant was not high on drugs is also supported by the fact she was able to identify the defendant’s physical characteristics, including a description of his tattoo.
37The Crown also relies on Mr. Jack’s testimony about the demeanour of the parties about 20 minutes after the events in question. He saw them at the Salvation Army. The complainant was upset and emotional in reporting she had been “raped” and the defendant was “white as a ghost” on seeing Mr. Jack.
38The Crown submits that the defendant’s prior statement to the police was fabricated to conceal his involvement with the complainant and deflect attention from himself. Counsel argues that such a finding constitutes independent evidence of guilt.
Analysis
39The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W(D), [1991] 1 S.C.R. 742).
40Probable guilt is not the criminal law standard of proof - it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.
41The integrity of the evidence given by the police and expert witness in this matter is not in question. The defendant’s DNA was present in both the external and vaginal swabs taken from the complainant. The source of that DNA is not identified.
42The defendant claims his DNA was deposited on the complainant by saliva through consensual oral sex. He denies forced sexual intercourse. This cannot be believed for three reasons.
43First, as a general proposition a prior conviction may bear on credibility. The defendant’s lengthy criminal record includes 47 convictions for theft, 22 for fraud, 12 for obstructing police, 2 for contempt of court, and 2 for impersonation. These many crimes of dishonesty justify a cautious approach to his testimony.
44Second, the defendant’s evidence was internally inconsistent on a material point. He testified that the complainant offered to trade sex for drugs and explained “I don’t get a woman every day, so I said yes, and we went into the sleeping bag, and we had oral sex and fell asleep”. Later, in denying the suggestion he sexually assaulted the complainant, he explained, “there are so many girls out there hooked on fentanyl who will do what you want, why would I need to do this?”
45Third, and most damaging to the defendant’s credibility, are the inconsistencies between his prior statement to police and trial testimony, as referenced above. In his prior statement he repeatedly and assuredly declared he had not touched the complainant. His explanation at trial, faced with the DNA evidence, that what he meant to convey is that he had not touched the complainant with his penis is stunning. The defendant would have me accept that performing cunnilingus is not “touching”. This is beyond belief.
46The complainant has two prior convictions. This is of some relevance to her credibility. The complainant’s testimony was marked by much movement by her while seated and several pauses in speaking. During cross-examination, she occasionally expressed frustration and anger. On one occasion she left her chair and quickly returned. On several occasions throughout her testimony, her memory was refreshed in reference to a prior statement given to the police. These actions, which might otherwise dictate a cautious approach to credibility and reliability, do not unduly trouble me in this case. This conduct is likely due to the fact the complainant suffers from FASD.
47I agree with the Crown’s observations about the credibility and reliability of the complainant. Her version of events is consistent with the evidence provided by the SOCO photographs of the area in question. The presence of her socks and pants on the grassy area near the sidewalk supports the complainant’s testimony that she abruptly fled the scene.
48Mr. Jack also supports the complainant’s version of events. There is no doubt he saw the complainant and defendant at the time of the events in question. He viewed the scene twice. He first saw the parties when he went to the Salvation Army to obtain warmer clothing. He saw the complainant on her stomach with the defendant seated behind her. On his return, he saw the complainant with her head between her legs and backside up, such that he could see a tattoo on her back because her clothing was pulled back. Mr. Jack saw the complainant soon after at the Salvation Army and confirms that she was upset as she reported being raped. It is not her report that is relevant to my considerations, but her demeanour.
49I am not concerned by Mr. Jack’s belief she was high on drugs because it is based on his quick observation that the complainant was not moving and his knowledge that there is much drug use in the area. Moreover, his assumption is not borne out by the evidence. Soon after the event, the complainant provided a good description of the defendant.
50Given the details provided by the complainant of the defendant’s words and actions and the evidence provided by the SOCO photographs and Mr. Jack, I have confidence in her account of how she was sexually assaulted. I also conclude that the defendant’s statement to the police is fabricated and constitutes independent evidence of guilt.
51In R. v. Wright, 2017 ONCA 560, it was held that:
[38] It is well established that our law distinguishes between an exculpatory statement which is disbelieved and one that is found to have been fabricated or concocted to avoid culpability. A statement which is merely disbelieved is not evidence that strengthens the Crown’s case. However, if the Crown can establish, through extrinsic or independent evidence, that an exculpatory statement was fabricated or concocted to conceal involvement in the offence, the statement evidence can be capable of supporting an inference of guilt: O’Connor; R. v. B.(P.), 2015 ONCA 738, 127 O.R. (3d) 721.
[39] The distinction between mere disbelief and a finding of fabrication is based on the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof where statements from an accused are tendered, or the accused testifies. As this court noted in O’Connor, at para. 19:
The distinction reduces the risk that the trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused’s explanation and may move too readily from mere disbelief to a finding of guilt.
52The extrinsic evidence in the present case that establishes the defendant’s statement was invented to mask his involvement in the offence is that provided by the DNA.
53In R. v. Paul, 2009 ONCA 443, the Court held as follows:
[22] Counsel for the appellant submits that a single piece of evidence can never provide both the basis for a determination that an appellant’s statement was false and for the further determination that it was deliberately fabricated to avoid detection. Counsel submits that as the DNA evidence could not carry the burden of both factual findings, the trial judge erred in instructing the jury that if it concluded, based on the DNA evidence, that the appellant’s statement was false, it could further infer, again based on the DNA evidence, that the false statement was made deliberately by the defendant for the purposes of avoiding detection.
[24] As indicated in the leading case of R. v. O’Connor (2002), 170 C.C.C. (3d) 365 at 377 (Ont. C.A.), where a trier of fact is satisfied that an out-of-court statement made by an accused is false, the circumstances in which the statement was made and the content of the statement may reasonably permit the trier of fact to conclude that the statement was not only false but was fabricated to conceal the accused’s involvement in the offence. The reference in O’Connor and many cases that have followed it to “independent evidence” of fabrication is intended to emphasize that a finding of fabrication does not flow automatically from a finding that the statement should be rejected as false. There must be something more in the evidence that reasonably justifies the further inference that the false statement was deliberately made for the purpose of concealing the accused’s involvement in the offence: see also R. v. Hazal (2009), ONCA 389 at paras. 11-20 (C.A.).
[25] In this case, the DNA evidence offered a basis upon which the jury could conclude that the appellant lied when he told the police he had not seen the victim. The circumstances in which he told the lie provided a further basis upon which the jury could infer that the appellant lied to cover-up his involvement in the homicide….
54The timing of the relevant events is important in this matter. One day after his arrest, the defendant repeatedly and unequivocally asserted that he had not touched the complainant and added that his DNA could not be on her. About five months later, a sample of the defendant’s DNA was taken and compared with the swabs taken from the complainant. The results were obtained one week before trial. They reveal the presence of the defendant’s DNA outside and inside the complainant’s vagina. This timeline establishes that the defendant’s prior statement was purposely fabricated to conceal his involvement in the offence. This is confirmed by his futile and absurd trial testimony on point.
Result
55I reject the testimony given by the defendant. I accept that given by the complainant. I find that defendant’s statement to police is additional independent evidence of culpability. Accordingly, the Crown has proven its case beyond a reasonable doubt. The defendant is guilty of the three charges.
Released: June 30, 2025
Signed: Justice J. De Filippis