Court File and Parties

COURT FILE NO.: CR-14-61 DATE: 2017/02/22 ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN – and – Julian Justinico Accused

Counsel: Aquilas Kapend, for the Crown Neha Chugh, Counsel for the Accused

HEARD: October 17, 18, 19, 20 and 21, 2016 and January 16, 2017

Reasons for Judgment

LEROY, J.

Introduction

[1] The charges against Julian Justinico are that he sexually assaulted SD (271) and that he broke into her dwelling and committed the indictable offence of sexual assault against SD (348(1)(b)) in the early hours of February 10, 2013.

Crown Narrative

[2] SD hosted a birthday party for her housemate AL on February 9, 2013. They were students at the local college. Most of the invitees were student colleagues. She invited BH, a student friend from across the street. BH told his friend, Julian Justinico about the party. Mr. Justinico attended the party with two male friends. SD recalled that Mr. Justinico was wearing a black and white striped shirt.

[3] The party carried on until the early hours of February 10, 2013. The last to leave were Mr. Justinico, one of his two friends and BH. Alcohol was consumed. SD said she consumed in the range of 10 beers through the party. AL said he consumed in the range of eight beers. BH said he consumed seven or eight beers at the party. He said he arrived at 11:30 p.m. after consuming one beer through the evening.

[4] SD was not acquainted with Mr. Justinico or his friends. She did not have a drink or exchange communication with him during the party.

[5] The dwelling configuration is typical of a single-family residence converted to student housing to maximize the number of rooms. It is a two-storey building occupied by six students at the time. The main party area was at one time the living/dining room. The table the occupants used to eat was located at the end closest to the back of the house. AL’s room was off the main room at the front of the house on the left side as one passed through the front entry. SD’s room was on the opposite side of the main room more towards the back of the house. The kitchen is contiguous to her room at the back. The other four occupants occupied the upstairs bedrooms.

[6] There are four entrances to the house, three on the ground floor. The front enters to the party room. A side door was never used. The back door opens to the kitchen. Lastly, there is an entrance from the upstairs balcony. Its door was obstructed by the cat litter container.

[7] SD retired to bed before the last stragglers departed. Most of the party-goers she knew had departed. She was inebriated. She recalls that when she entered bed her clothing stayed on. She was wearing underwear, tights, a tank top and a V-neck shirt. She was asleep in minutes. Her bedroom door was not secure as it had been smashed open earlier after SD locked her keys inside.

[8] AL and BH recall that sex with SD was a topic of discussion among the Justinico contingent after she removed from the party. They thought she was hot and it would be nice to have intercourse with her. It was around 3:00 a.m. AL was ready for these people to leave. Mr. Justinico indicated he wished to say good night to SD before leaving. He opened her door entered her room and closed the door. AL heard and observed this and allowed a period of 30 seconds to pass before following Mr. Justinico into the room.

[9] He observed Mr. Justinico on the bed on top of the covers trying to spoon against SD who he observed to be flat on her back. SD was under the covers. He did not see Mr. Justinico touch SD. He heard SD say “Help me”. AL ordered Mr. Justinico off of the bed and out of the room. He hastened Mr. Justinico’s departure from the room by pushing him out. AL recalls that Mr. Justinico was aggrieved about this intervention. He said Mr. Justinico’s lament was that AL had ruined his chance to have sex with SD and AL should have let him stay with her.

[10] SD’s recall of this occurrence, if any, did not amplify. In the first interview with police, SD denied memory of the incident. At trial, she said she had vague memory of AL in her room but does not recall Mr. Justinico’s entry at the time.

[11] AL said that the last three men departed immediately after. He turned the lights off, locked the front door and went to bed.

[12] SD’s next recollection is of emerging consciousness. Her room was dark. Someone was performing cunnilingus. Her tights and underwear were removed. Shortly after SD recovered nascent consciousness, this person shifted to penile penetration of her vagina. By then, she realized what was happening and yelled out. She watched this person pull his pants on and flee. SD recalled that the perpetrator was wearing a black and white striped shirt, that he had dark hair, and a slender smaller figure. She returned to sleep.

[13] AL heard the outcry between five and six a.m. He recalls hearing the words “Get the fuck out of my room”. He went to his bedroom door, saw nothing and returned to bed. He assumed that SD was yelling at the household cat.

[14] Another resident, MR observed that the back door to the kitchen was ajar when she returned home at approximately 6:00 a.m.

[15] On waking later, SD noted that her clothing had been removed save for the tank top. The clothing she was wearing when she went to sleep was on the floor next to the bed. She pulled on a pair of pajamas. It was only when AL enquired about what she was yelling about in the night that her memory of the sexual assault crystallized. When this conversation began, another roommate was in the room – K. SD recalled that she was uncomfortable with making K. privy to her experience. She recalled that K. vacated the room to give them privacy. AL recalled that K. remained but was not part of the conversation. SD disclosed to AL that morning.

[16] SD did not know the assailant’s name. She knew him to be the fellow at the party wearing the striped shirt. They knew him to be BH’s friend. In testimony, SD described the person who assaulted her as wearing a black and white striped shirt, with black hair, dark skin, average height – 5”10” and a bit of a hunched back. She acknowledged that she did not mention the striped shirt to the interviewing officer, explaining that she was not asked what he was wearing. She acknowledged that the mention of the hunched back was made for the first time at trial.

[17] The two went to BH’s home, as he was the nexus with Mr. Justinico. They established Mr. Justinico’s name and looked him up on Facebook. SD matched Mr. Justinico’s Facebook picture to the fellow who sexually assaulted her.

[18] The evidence revealed that one of the investigating officers took statements from AL and BH simultaneously around the kitchen table on February 10, 2013.

[19] Forensic investigation could not exclude Mr. Justinico as the perpetrator. The male DNA swabbed from SD’s genitals matches Mr. Justinico’s DNA.

Governing Principles

[20] Mr. Justinico is presumed to be innocent unless and until Crown counsel proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. Justinico does not have to prove anything. I have to determine whether all the evidence has proved these offences beyond a reasonable doubt.

[21] The burden of proof beyond reasonable doubt applies only to the trier’s final evaluation of guilt or innocence. The standard of proof beyond reasonable doubt does not apply to the individual items or separate pieces of evidence in the prosecution’s case, but rather, to the whole body of evidence upon which prosecution relies to establish guilt – R. v. Bouvier (1984), 11 C.C.C.(3d) 257 (ONCA), affirmed R. v. Bouvier, [1985] 2 S.C.R. 485, R. v. Menard, [1998] 2 S.C.R. 109.

[22] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to absolute certainty than to proof on a balance of probabilities.

[23] There are at least four potential sources of testimonial error when a witness describes events she claims to have observed or experienced: perception; memory; communication; and sincerity. Credibility and reliability are different.

[24] I can believe some, none or all of a witness’ testimony.

[25] The assessment of evidence includes consideration of benchmarks of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency and consistency with other evidence and availability of other sources of information.

[26] As this is a case where the evidence for the prosecution is substantially circumstantial, the accused can only be found guilty where the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence.

Hearsay Submissions

[27] Defence submitted that statements attributed to Mr. Justinico at party’s end are hearsay and ought not to be admitted because the prejudicial effect outweighs the probative value inherent in the words attributed to him. This submission was imbedded in the submission relative to prior discreditable conduct and that it would be an error to assess Mr. Justinico’s intentions at 3:00 a.m. and carry them over to the more egregious sexual assault as that would be the same as assuming Mr. Justinico is the type of person to commit this offence.

[28] In the usual course, the trier of fact will consider the aforesaid testimonial factors in deciding what weight to assign to a witness’ evidence. To diminish the potential for error because of the dangers inherent in a witness’ description of a previous event, a witness is in general required to testify under three conditions:

i. personal presence before the trier of fact; ii. under oath or its equivalent; and iii. subject to cross-examination.

[29] The essential defining features of hearsay are:

i. the out-of-court statement is introduced to prove the truth of its contents; and ii. the absence of a contemporaneous opportunity to cross-examine the declarant.

[30] The element of purpose is critical to the application of the hearsay rule. The statement is only excluded by the rule when offered for the purpose of proving the truth of the content of the statement. The hearsay rule does not exclude statements offered as original evidence or for a relevant purpose other than to prove the truth of its contents.

[31] Recognized hearsay exceptions at common law include declarations of mental or emotional state – animus, declarations connected with a relevant act, spontaneous exclamations and admissions.

[32] A statement of a contemporaneous state of mind or emotion is admissible to prove the declarant’s state of mind, thoughts, emotions or intentions. The declaration is frequently received as original evidence that requires no exception to support its admission.

[33] A spontaneous exclamation is admissible to prove the truth of the content when the statement is made before or after an event or transaction in issue in circumstances of such spontaneity that the possibility of concoction is reduced to disappearance.

[34] The admissibility of an admission goes to the truth of the content as it rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his own statement – R. v. Evans, [1993] 3 S.C.R. 653 at para. 24. Admissions are presumed truthful because they have been made by the accused. They are received as evidence of the truth of contents. The weight of the admission is for the trier of fact.

[35] A statement immediately connected with an act in issue is admissible to prove the truth of the matter asserted if it is made contemporaneously with the act to which it relates.

Essential Elements of the Offences Charged

[36] The essential elements of breaking and entering and committing a sexual assault are that the accused broke into a place, that the accused entered a place and that the accused committed the offence of sexual assault in the place. As a general rule, breaking into a place requires the application of some force, however slight, to gain entry. Opening, unlocking or unlatching a door involves enough force to count as a breaking. Entering a building through a door already open wide enough to allow a person to enter is not breaking. Section 350 of the Criminal Code provides for constructive break and entry. A person is deemed to have broken and entered if he entered without lawful excuse, the proof of which lies with him or her.

[37] The essential elements of sexual assault include the intentional application of force of a sexual nature to which the complainant did not consent by an accused who knew the complainant did not consent.

Similar Act/Discreditable Conduct

[38] The Crown position in submissions is that the two counts do not reflect discrete charges for discrete sexual assaults, rather that there was one sexual assault transaction that began with the interaction described by AL and concluded with non-consensual cunnilingus and sexual intercourse a few hours later described by SD.

[39] The defence position is that the event recounted by AL and BH ought to be characterized as a discrete event that ought to be scrutinized for admissibility under the aegis of prior discreditable conduct/similar act evidence analysis and that the comments attributed to Mr. Justinico were never parsed in the hearsay context. The defence submits that to do otherwise exposes Mr. Justinico to the inference he is the type of bad person who was likely to commit these second offences of break and enter and commit sexual assault or a person deserving of punishment – moral prejudice.

[40] Similar act evidence is presumptively inadmissible. The burden is on the Crown to demonstrate, on a balance of probabilities, that, in the context of this case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and justifies reception. The first question in the analysis is what is the probative value of LA’s evidence regarding Mr. Justinico’s end-of-party conduct to an issue other than showing his propensity to commit repugnant acts. The reasoning process to assess probative value is linked to the improbability of coincidence and connectivity to the issues in question.

[41] The measure of the improbability of coincidence involves a review of the similarities and dissimilarities between the break and enter to commit and the end of party conduct. Was there a temporal connection? Are there any unique features? What are the surrounding circumstances of the acts and what are the similarities of those circumstances? Are there any distinctive features?

[42] Prejudice occurs where the evidence operates unfairly to the accused. Reasoning prejudice involves the trier becoming distracted or confused by the number of external incidents and the risk of conviction based on the cumulative effect of numerous incidents. Moral prejudice is the concern for conviction of the accused because he is a bad man and deserves to be punished.

[43] The risk of moral and reasoning prejudice is reduced significantly in judge alone trials.

[44] The gatekeeper function of the Court is achieved by weighing the probative value of the similar act evidence against its prejudicial effect. An accused cannot be convicted for being a bad person. Similar act evidence is presumptively inadmissible across counts. The result on the sliding scale of admissibility is that probative value increases as the improbability of coincidence between the incidents increases.

Application of Governing Principles

[45] The defence argued there have to be two steps in the analysis. The first is to decide whether the 2nd event actually transpired or not. Is this memory or dream? The second is whether the Crown has proven Mr. Justinico was the perpetrator.

[46] The issues of consent or mistaken consent are not issues. The issue is identity. The only evidence is that SD was sexually assaulted between 5:00 and 6:00 a.m. on February 10, 2013.

[47] The first building block came from the complainant. By itself, SD’s identification evidence would be insufficient to prove identity beyond reasonable doubt. SD said her assailant was the fellow wearing the striped shirt at the party. She did not know his name but was able to identify him from photographs on his Facebook page. Honest and well-intentioned complainants can be unreliable because circumstances could have inherently clouded her perceptions and there is always concern for confirmation bias. It was nighttime, dark in her room between 5:00 and 6:00 a.m. and her perceptions were formed as she awakened from deep alcohol-affected sleep. Her recollections expanded over time. If her credibility regarding identification was central to the Crown case, that would require deeper review. As it is not, the deficits in her memories regarding identification are not factors.

[48] Even though there could never be a conviction based on SD’s memories and identification, I am not persuaded that the process they followed to ascertain his name was flawed. She began the analysis by nominating the stranger who is Mr. Justinico as the assailant. The AL/SD process was designed to ascertain his name.

[49] The second building block derived from AL and BH.

[50] I do not agree with the defence submission that Mr. Justinico’s conduct and utterances at the end of the party ought to be excluded from the evidentiary record.

[51] Whether these events form the basis for discrete stand-alone transactions or whether these events constitute one event, the core issue is identification and whether or not the Crown has proven that Mr. Justinico is the person who sexually assaulted SD between 5:00 and 6:00 a.m. on February 10, 2013.

[52] Regarding the hearsay submission, the remarks attributed to Mr. Justinico are admissible as admission irrespective of the hearsay analysis. Mr. Justinico cannot complain about the reliability of his own statements.

[53] Further, they are admissible for the truth of what he said under the hearsay exemptions of spontaneous declaration and evidence of animus - state of mind as well as original evidence and declarations connected with a relevant act. In a principled analysis context the indicia of threshold reliability for admissibility are incontrovertible.

[54] BH, if anything in testimony, tried to protect his friend, Mr. Justinico. AL’s evidence was both credible and reliable. BH confirmed the lascivious tone of the conversation just before Mr. Justinico entered SD’s bedroom. Mr. Justinico did talk about having sex with her. I accept that he entered her room without consent, shut the door and got on the bed. AL intervened before Mr. Justinico did more than initial cuddling. I accept that Mr. Justinico was aggrieved by AL’s intervention and declared as much.

[55] I do not have to decide whether Mr. Justinico’s conduct as reported by AL and BH was part of a single transaction or discrete act. If it is part of a single transaction it is admissible as original evidence. If it is a discrete act and is seen as evidence in the category of similar act /discreditable conduct evidence it would be admitted on the issues of identity, animus and motive because its probative value prevails over the prejudicial effect it has.

[56] This circumstantial evidence connects to the assailant’s identity and particular motivation/animus. It evidences a man without compunction to gain entry to an unconscious woman’s bedroom and touch a complete stranger sexually without consent.

[57] In this case, the probative value of AL’s evidence pertaining to Mr. Justinico’s words and conduct just before leaving the party is meaningful. The two incidents are separated by three or so hours. Mr. Justinico intruded uninvited into a woman’s bedroom as did the intruder who assaulted her. Mr. Justinico climbed onto SD’s bed as did the intruder who assaulted her. He touched her without consent as she was unconscious as did the intruder who assaulted her. Mr. Justinico declared his desire for sexual intercourse with SD and lamented AL’s intervention. Mr. Justinico’s end-of-party behaviour was predatory as was the intruder’s.

[58] These building blocks do not amount to proof of identity beyond reasonable doubt. Mr. Justinico had to be the primary suspect based on this evidence, but conviction on this alone is not an option. The fact that AL and BH were interviewed together would be more of an issue if their evidence was contested or if their evidence was dispositive.

[59] The DNA evidence is dispositive of guilt in conjunction with the building blocks stated. Defence submitted correctly the DNA biologist cannot verify the transfer means but SD said her first sensation was of cunnilingus that progressed to intercourse. The biologist’s evidence concluded the DNA swab that contained Mr. Justinico’s DNA derived from skin cells or a body fluid including, but not limited to saliva. The biologist’s opinion was that given these limitations, she could not determine whether any blood or saliva present on the swab originated from SD or the male DNA donor.

[60] The defence position is that there are a number of explanations why a particular DNA may have ended up where it was found and this is why DNA compatibility is unreliable as an indicator of the identity of the offender. I agree with the principle. It is possible to obtain DNA profiles from items such as guns, door knobs, tool handles, steering wheels and the like; however, not every handling of an object leaves a DNA profile and a DNA profile from a handled object is not necessarily from the last person who touched the object or the DNA may have transferred from a sneeze or cough. It is important to look at all the circumstances.

[61] The defence position is that to accept the presence of Mr. Justinico’s DNA on SD’s genitalia as confirmation of the identity of the perpetrator reverses the burden of proof. The burden of proving guilt beyond reasonable doubt rests with the prosecution throughout. Mr Justinico does not have to prove anything let alone an innocent explanation as to how his DNA ended up on SD’s genitals.

[62] On the evidence presented, I do not agree with the argument. There are no benign explanations for the presence of the accused’s DNA on the complainant’s genitals. There is no evidence to support benign transfer. The trier has to go with the evidence and not speculate. Any innocent transfer had to have happened before SD exited the party. They were strangers. The closest they came to one another was they were in the same building. There was no contact between them during the party. I conclude that when SD retired Mr. Justinico’s DNA was not affixed to her genitals.

[63] AL observed Mr. Justinico on top of the covers and SD under the covers when he entered the room. She was unconscious. Mr. Justinico was trying to spoon SD. No kissing or other opportunity for exchange of bodily fluid is in evidence. That exchange happened in the blink of thirty seconds. There is no evidence of contact with her genitals or any part of her body in that encounter.

[64] The only depiction offered for the presence of Mr. Justinico’s DNA on SD’s genitals derives from SD. She awakened to a sexual assault. Mr. Justinico left his calling card. She slid back to sleep.

[65] I am satisfied beyond reasonable doubt that Mr. Justinico entered the house through the back door, into the kitchen and into SD’s room. It was mid-winter – the back door was not open, it was unlocked and he had to open it. He was not an invitee. The party was over and he was an intruder, a stranger and not a friend. He had to open SD’s bedroom door to gain entry.

[66] Accordingly, there will be a finding of guilt for break and enter to commit sexual assault and sexual assault.

[67] May I have your submissions regarding the issue of registering conviction?

Mr. Justice Rick Leroy Released: February 22, 2017