Court File and Parties

Court File No.: YC-16-80000008-000 Date: 2018-09-27 Ontario Superior Court of Justice Youth Criminal Justice Court

Between: Her Majesty the Queen And: R.D.M., Defendant

Counsel: Cara Sweeny, for the Crown Lisa Jorgensen, for the Defendant

Heard: June 18, 19, 20, 22, 25, 26, 27, 2018

Before: B. P. O’Marra, J.

Reasons for Judgment

Overview

[1] The Crown alleges that on August 17, 1990 S.W. was sexually assaulted, robbed, and threatened with death by two men armed with knives. The specific counts are as follows:

1. R.D.M., a young person within the meaning of the Youth Criminal Justice Act, stands charged that he, on or about the 17th day of August in the year 1990, at the City of Toronto, in the Toronto Region, in committing a sexual assault on S.W., was a party to the offence with another unknown person, contrary to section 272(d) of the Criminal Code, as amended.
2. R.D.M., a young person within the meaning of the Youth Criminal Justice Act, stands further charged that he, on or about the 17th day of August in the year 1990, at the City of Toronto, in the Toronto Region, did commit a sexual assault on S.W. while using a weapon, namely a knife, contrary to section 272(a) of the Criminal Code, as amended.
3. R.D.M., a young person within the meaning of the Youth Criminal Justice Act, stands further charged that he, on or about the 17th day of August in the year 1990, at the City of Toronto, in the Toronto Region, did steal from S.W. while armed with an offensive weapon, namely a knife, contrary to section 343(d) of the Criminal Code, as amended.
4. R.D.M., a young person within the meaning of the Youth Criminal Justice Act, stands further charged that he, on or about the 17th day of August in the year 1990, at the City of Toronto, in the Toronto Region, did by word of mouth knowingly utter a threat to S.W. to cause death to her, contrary to section 264.1(1)(a) of the Criminal Code, as amended.

[2] At the time of the alleged offences S.W. was a prostitute who worked in the Church and Carlton Streets area in Toronto. S.W. could not identify either of the attackers in August 1990 or at this trial in June 2018. The Crown’s case rests most significantly on DNA evidence found on the underwear S.W. wore when she was attacked. R.D.M. could not be excluded as the donor of that DNA. R.D.M. did not testify. He had no obligation to do so, or to prove anything at this trial.

[3] Counsel for R.D.M. in her very able questions and submissions did not dispute that S.W. had been the subject of an armed sexual attack. The defence challenged the reliability of S.W.’s evidence on certain crucial issues, including her interaction with clients before the attack and the state of her clothing. The defence also challenged the clothing’s chain of continuity, specifically the underwear, in the months and years following the attack before the DNA evidence implicating R.D.M. was detected.

The Evidence of S.W.

[4] S.W. was 49 years old when she testified at trial. She has lived in western Canada for some 27 years. She is employed in construction. She lives in a common law relationship and has two adult children ages 24 and 22 years-old.

[5] In August 1990 S.W. lived in downtown Toronto. She worked for an escort service in addition to prostituting herself. She lived in a large rooming house located a short cab ride from the Church and Carlton intersection where she usually worked. Her home included a shared kitchen. However, she had her own washroom. She cleaned her clothes at a laundromat. Her boyfriend, Richard, lived on Spadina Avenue. She spent some nights at Richard’s Spadina address but did not keep any of her clothes there. On hot, muggy days she sometimes changed her clothes three or four times per day. S.W. could fit a change of clothes into her purse because of her small stature.

[6] In August 1990 S.W. only had unprotected sex with Richard. If she was menstruating she would not have sex with Richard but would do so with customers.

[7] In cross-examination the defence asked S.W. about her income and expenses in 1990. She could not recall her monthly rent costs. She worked for an escort agency and also independently on Thursday to Saturday nights inclusive. She claimed that she earned several thousand dollars per week. When she worked for the agency she might have up to four or five customers per night. S.W. usually went to a hotel with her customers. She sometimes went to the customers’ homes when she worked on her own. She never did so with an agency client. For oral sex she could receive $100 - $200. For vaginal sex she could receive $200 - $400.

[8] When S.W. had sex with a client she usually kept some clothes on in case she had to leave quickly. It was not safe to have all her clothes off and she rarely did so.

[9] S.W. always required that her clients used two condoms, even for oral sex. She would put each condom on separately. After the fact she sometimes removed them and put them in the trash.

[10] On the evening of August 16, 1990 S.W. started work at about 10:00 p.m. at the corner of Church and Carlton. On that night S.W. was alone, except for a few other sex workers in the area. S.W. stood near a bus stop in a bright area where she felt comfortable. She could see Maple Leaf Gardens (as it then was) from where she stood. She wore a skirt, top, black stiletto heels, and underwear. She could not recall whether she wore a bra.

[11] In cross-examination S.W. said she could not recall if any other sex workers were working in that area that night. She was referred to her evidence at the Preliminary Hearing when she mentioned a friend named Shannon who she said was in the area that night. Based on that reference S.W. agreed that Shannon must have been in the area, but she was not sure now.

[12] S.W. testified that she dealt consensually with three customers on the evening of August 16 and into the early hours of August 17 before the alleged sexual attacks. She could not recall whether she had dealt with any of the three customers before. I will review her evidence related to each of the three customers separately.

First Customer

[13] S.W. met this customer shortly after she started work. She recalled that she went with him into a car. He parked and she performed oral sex on him. She was certain that she placed two condoms on the customer. There was no vaginal sex. He ejaculated into the two condoms that he wore. She was not sure who removed the condoms. She was not sure of how much she was paid but believed it was $150 or $200. The customer then drove S.W. back to Church and Carlton.

[14] In cross-examination S.W. was referred to her evidence at the Preliminary Hearing where she testified that she was supposed to do something sexual with the first customer but ended up just talking. S.W. now stated that she may have been “guessing” that she performed oral sex, but could not be sure.

Second Customer

[15] S.W. was not sure whether she was driven to a parking spot or not. She performed oral sex on the customer. He ejaculated into the two condoms she had put on him. She could not recall who removed the condoms. She was not sure whether she received more money from the second customer than she did from the first customer.

[16] In cross-examination S.W. could not recall saying that after the second customer she saw her hairdresser Tim closing up his nearby shop. She agreed that she was telling the truth at the Preliminary Hearing but now had no memory of seeing Tim that night.

[17] In cross-examination S.W. agreed that she did not recall where she went with the second customer. She then explained that there was information she had not yet disclosed. In August 1990 she had two rooming houses in the same area: one where she sometimes brought customers and one where she lived. At the Preliminary Hearing she testified that she took the second customer to a rooming house. She was now not sure whether she took the customer to a rooming house.

Third Customer

[18] S.W. went to this customer’s apartment where they had vaginal intercourse. He ejaculated into the two condoms that she had placed on him. She did not recall who removed the condoms but stated that she typically preferred that the customer do so. If she removed the condoms she would typically use a towel or kleenex to avoid contact. Before leaving the customer’s apartment she washed up since she was “messy” as she was menstruating. She recalled standing in his bathtub and washing. She had blood on her legs. She hoisted her skirt up and took just one leg out of her nylon. She still wore her underwear and nylon as she washed and used a towel to dry off. The customer then took her back to Church and Carlton. He dropped her off near her hairdresser’s place, which was located a short distance from the corner.

[19] S.W. agreed that she did not mention washing herself in the bathtub at the Preliminary Hearing. Counsel agreed at trial that S.W. did refer to washing herself when she was at the hospital in the course of the medical examination and rape kit process.

[20] In cross-examination S.W. said that she did not have any spare clothes with her that evening. She also said that she could not recall whether she had brought spare underwear that evening. She added that if she soiled her underwear related to her menstruation she would have thrown it away, but did not recall having any “accidents”. She maintained that she was a “very clean person” in terms of the clothes she wore and how she handled soiled clothes or used condoms.

The Attacks

[21] After the third customer dropped her off S.W. reached into her purse for a cigarette when she was attacked. The lighting was not very good. Her attacker began to drag her and she “just started freaking out”. He dragged her to a parking lot. She had never been to the spot where she was dragged. It was dirty and dark. There were vehicles on either side of her. She could no longer see the street. She could not see any people or vehicular traffic around. Her attacker told her not to scream or move. She saw a knife in his hand. He threatened to hurt her if she screamed or tried to get away. He put the knife to her throat lengthwise. He kept threatening her and “messing” with her clothes. She could not recall whether he took off all of her clothes. He took off enough for the sexual intercourse that followed. He whistled and another man approached them. She described the first attacker as the “blonde”. She saw his hair colour as she struggled. The blonde and the other man took turns raping her. The blonde raped her first. During the attack, both men kept threatening her with knives. While one man raped her the other held a knife to her throat. The first man forced his penis into her vagina while he stood behind her, and while she was on her hands and knees. She guessed that this rape lasted for 15 minutes or so. He ejaculated. She felt “stuff” running down her leg. The men then switched places and the second man forced himself on her. She kept her eyes squeezed shut as she feared her attackers would hurt her more if she looked at them. The blonde held a knife against her throat during the second rape. The second man also ejaculated.

[22] S.W. testified that the two attackers passed the knife that they used to threaten her back and forth between them. She was referred to her evidence at the Preliminary Hearing where she indicated that there were two knives, rather than one passed back and forth. She now believed there was one knife and not two, but was not sure. She referred to the position she was in and the difficulty in making her observations.

[23] Aside from the threats she heard the two men talk to each other during the attacks. She had never seen either of the attackers before. When the second man finished S.W. said she was “full of blood”. She was not sure whether she bled from being cut or from menstruating. She tried to “get herself together” and figure out how to escape. There was blood on the ground when she tried to get up. She was not sure if her attackers would allow her to move.

[24] Both men proceeded to have vaginal sex with her a second time. The blonde was first. He was unable to penetrate her and the other man laughed at him. The second man then raped her again. She cannot recall whether he ejaculated that time.

[25] S.W. testified that she was sure that the blonde ejaculated the first time. She could feel “stuff” running down her leg, heard noises as he did “it”, and felt “it” inside her. She denied that she could not say whether there was ejaculation in the first sexual incident. She was also certain that the second man ejaculated inside her.

[26] S.W. did not know how she avoided being cut on the neck during these incidents.

[27] S.W. testified that she was on her hands and knees during the sexual attacks. She also said “they had me on the ground in every way”. She was referred in cross-examination to her evidence at the Preliminary Hearing when she indicated the following positions during the attacks:

• “they were laying on top of me”; and
• “at one point they had me up against a car”.

[28] At trial S.W. testified that she gave those answers at the Preliminary Hearing. She stated that she must have been forced into several different positions and now had no clear memory. In re-examination counsel referred S.W. to her August 1990 police statement in which she stated: “they sat me up on the trunk of the car.”

[29] S.W. kept some money in the insole of one of the black stiletto shoes she wore that night. She had approximately $600 from the three customers she dealt with before being attacked. The blonde found the money. The two men counted it and said words to the effect “looks like you had a good evening”. They took some of the money and returned the rest, about $100, to her.

[30] The two men also looked at the contents of S.W.’s purse. She does not recall if they took anything else. When they found a pager they asked if she was “a cop or something”. She told them if she was a cop they would probably be dead because she would have had a gun (or words to that effect). Her purse contained cigarettes, a lighter, and condoms.

[31] S.W. was referred in cross-examination to her evidence at the Preliminary Hearing where she said that she kept her money that night inside her nylons. S.W. stated that she did not recall that answer but agreed it was her best recollection at the time. She was no longer sure.

[32] The second man told the blonde to “get out of there”. She feared that he intended to kill her as he said they “can’t let her get away” and that she would “go to the cops” and not stay quiet. The blonde told him “its more trouble if we do . . . this is just raping her and let’s get out of here”. One of the men pinned her head to the ground and told her not to move. She then heard footsteps going away.

[33] The only names she heard mentioned by the two attackers were “Buddy” and “Steve”.

[34] S.W. then opened her eyes and looked around. She grabbed her skirt and shirt. The skirt was near a car. She dressed herself. She agreed that her underwear may have been off and on the ground before she put it back on. She ran onto the street, flagged a taxi, and went to the hospital immediately.

[35] In testimony S.W. identified the following items of clothing that the police seized in August 1990:

• Exhibit 1 - skirt;
• Exhibit 2 - lime green top with a mark at the front. She identified that as a cut done to scare or threaten her. She did not recall who made the cut or when it happened; and
• Exhibit 3 - underwear.

[36] At the hospital S.W. said she had been raped. She was taken to a second hospital. She spoke to a woman who examined her and explained the rape kit process. The hospital staff kept her clothes and gave her fresh clothes to wear home. She later spoke to the police. They took a statement from her. She is fairly sure that she gave the money in her possession to the police. The police took her out to look for the attacks’ location. She could not recall if she was able to identify it. She said the police were “very difficult” with her and told her not to be hysterical. She does not recall any further contact with the police in August 1990. She stayed in Toronto for six months to a year before moving away.

[37] In cross-examination S.W. did not recall telling the police in August 1990 that she had a court date set for August 17, 1990. She denied being in any “trouble” at that time, or that she tried to get excused from going to court. She did not recall that she failed to attend further scheduled meetings with the police. She agreed that she did not later tell the police when she moved away from Toronto.

[38] Before S.W. left the Toronto area she returned to sex work in the Church and Carlton area. She now made sure she had “protection”, including a device for making a loud noise. She stayed at the same rooming house as she felt safe there. She wanted to make enough money to leave Toronto.

[39] In 2014 the RCMP contacted S.W. She had no idea why they would contact her. The police told her that they had found DNA related to the 1990 incidents. She did not know anyone named R.D.M.

Evidence of Glenn Archer

[40] Glenn Archer retired from the Toronto Police Service (TPS) in July 2014 after 35 years of service. He reviewed notes he made dated August 17, 1990 when he was on duty and dealt with S.W. He has no independent recollection of these events and his notes do not refresh his memory. His evidence was received as past recollection recorded based on his notes. His evidence included the following information:

• shortly after 6:45 a.m. he met and observed S.W. in a quiet room at Wellesley Hospital;
• S.W. wore a “green bikini top, soiled and torn at the breast area, a black skirt, soiled, white panties [underwear], black stiletto heels, with a black purse”;
• by 7:04 a.m. he was driving S.W. to Women’s College Hospital; and
• at 11:25 a.m. he received a sexual assault kit from Toni Perrin, Registered Nurse, as well as women’s clothing.

[41] Mr. Archer also identified a Property Receipt he filled out referring to the clothing and the sexual assault kit.

The Evidence of Toni Perrin – Registered Nurse

[42] Toni Perrin worked in the sexual assault care center as a registered nurse at Women’s College Hospital in August 1990. She was shown medical records dated August 17, 1990 that refer to her dealings with S.W. on that date. Ms. Perrin currently has no independent recollection of her dealings with S.W. and the records do not refresh her memory. She recognized her own handwriting on the notes. Her evidence was received on the basis of past recollection recorded based on those records. The content of the medical records includes the following information:

• Nurse Perrin met S.W. at approximately 9:30 a.m. on August 17, 1990;
• S.W. was at the hospital related to a reported sexual assault;
• S.W. would have been instructed to stand on two layers of paper, remove her clothing, and put the articles into a bag. The nurse would then label the bag. S.W. would then be given other clothes to wear provided by the hospital. This information was based on Ms. Perrin’s general practice at the time;
• The general procedure involved giving investigating police the bag containing the clothes. This bag would be referred to as Bag #1;
• Bag #2 contains what is referred to as “body evidence”. “Body evidence” would include a head hair specimen and an oral swab; and
• Bag #3 contained items including a vaginal swab.

[43] In cross-examination Ms. Perrin agreed that there are no notes detailing the specific items of clothing received from S.W. In re-examination she testified that if the subject person had some clothes in hand and was wearing other clothes she would have taken and bagged all of the clothes.

[44] Her notes indicate she later handed the sexual assault kit to the police.

Evidence of Inspector Stephen Irwin

[45] Inspector Stephen Irwin of TPS was a Detective Sergeant working in the sexual assault squad in 1990.

[46] On the morning of August 17, 1990 he and his partner attended Women’s College Hospital and received information about a reported sexual assault. He spoke to a number of uniformed officers, including P.C. Glenn Archer. He learned that the complainant S.W. had a court appearance scheduled for that day. A records check revealed that she did not have a criminal record but had outstanding charges. At this trial there were no further questions or pieces of information supplied by either counsel related to those outstanding charges.

[47] In the early afternoon of August 17, 1990 Officer Irwin conducted an audio interview of S.W. He also received property from her that might assist the investigation, including $120 in cash. TPS officers believed that the culprits may have handled the cash and left fingerprints. S.W. also gave police a pager battery. TPS officers arranged an appointment for S.W. to view a photo array on August 21, 1990 at 1:00 p.m. Later in the afternoon of August 17, 1990 the officers drove S.W. to the Church and Carlton area to determine if she could identify the apartment of her last customer before the alleged attacks. She was unable to do so.

[48] The test for fingerprints on the cash was negative.

[49] TPS stored clothing and biological samples seized from S.W. at the hospital in paper bags in a sexual assault kit box until TPS delivered them to the Center of Forensic Sciences (CFS).

[50] Officer Irwin identified the sealed kit box (Exhibit 11 at trial) by reference to his notes, property documents, and a seal number.

[51] S.W. failed to attend the photo array appointment on August 21, 1990. Further efforts to contact her were unsuccessful.

[52] On January 3, 1991 Officer Irwin filed a report that indicated that TPS would not take further action on S.W.’s case. TPS officers made this decision based on the complainant leaving town with no forwarding contact information. S.W. was informed on August 17, 1990 that the cash she gave to the police for testing would be returned to her. She made no effort to recover the cash.

Evidence of Staff Sergeant Jeanille John

[53] Staff Sergeant John has been a TPS member for 27 years. In June 2002 she worked in the sexual assault squad as one of three members assigned to the cold case unit. At that time, the DNA databank had been created and cases that had not yet been submitted for DNA analysis were being revisited.

[54] On June 26, 2002 Detective Mori advised Officer John that the underwear held by TPS related to S.W.’s case was to be submitted to the CFS. Officer John retrieved the sexual assault kit box from property storage at the sexual assault squad building. The box had a tag or seal affixed to it from when the nurse first completed it. A TPS property tag was also affixed to the box. The box contained a number of bagged items. She seized item “1C” listed as a pair of underwear in a brown paper bag. She placed the brown paper bag into a property bag, noting a corresponding number in her log book. She also sealed the property bag for submission to the CFS. She placed the remaining items back into the sexual assault kit box, taped it, and sealed it. She noted the seal number in her log book. The box was marked as Exhibit 11 at trial. She also identified Exhibit 3 at trial: the brown paper bag containing the underwear that she had retrieved. She submitted the sealed paper bag and underwear to the CFS on June 27, 2002.

[55] On September 5, 2002 Officer John received a report from the CFS indicating that DNA had been detected on the underwear. The case was refiled for investigation.

[56] On October 16, 2002 Officer John attended the CFS and retrieved items relating to various cases, including the paper bag with the underwear from this case. Officer John attached a tag number for the bag to be logged in the property unit. The bag and underwear were kept in a separate box and not returned to the original sexual assault kit box. That box was marked as Exhibit 13 at trial.

[57] In cross-examination Officer John agreed that she had no personal knowledge as to who had access to the sexual assault kit box between 1990 and 2002 or the conditions in which it was stored. She was referred in testimony to some seals that appear to be dated after 2002.

The DNA Evidence

[58] Melissa Kell is a forensic biologist at the CFS. The defence conceded that she is qualified to give opinion evidence as an expert related to the examination and interpretation of bodily fluids and DNA analysis. She first became involved in this case when it was assigned to her in 2002. This assignment was part of a sexual assault cold case program in partnership with TPS to re-evaluate cases and utilize the DNA databank that was now available. The critical item Ms. Kell examined was S.W.’s underwear, which she provided to police on August 17, 1990.

[59] Staff received the underwear at the CFS on June 27, 2002 in a box with seals and identifiers. Officer John delivered the box. Based on the case history the CFS staff examined the underwear for semen.

[60] The first examination step involved a chemical test to try and localize areas on the underwear to test further for sperm, which is the cell component of semen. Based on that test a portion of the crotch area of the underwear was cut out to be examined microscopically for sperm cells. A further test confirmed that sperm cells were present. A DNA profile can be obtained from such a sample.

[61] A further moderate to heavy red-brown staining was observed in the crotch area. The CFS staff tested one area of the stain, detecting blood.

[62] There was ample DNA in the sperm cell sample to generate a profile. The DNA profile from the sperm contained a mixture of at least two males. There was a major and minor DNA profile suitable for comparison. There was nothing in the profile to indicate more than two males present. Both profiles had enough DNA information to qualify for upload into the DNA databank.

[63] Once the examination was complete the underwear was packaged and resealed to be sent back to the submitter. In this case Officer John was the submitter. The DNA extracted from the cut out was stored at the lab and was available for further testing at a later date. The submission form in this case indicated that the underwear was packaged for return in September 2002. The DNA was stored at the laboratory and further tests were done.

[64] In October 2014 Ms. Kell examined a pubic hair combing and a comb which TPS submitted. They were examined to see if semen could be detected. The results were not deemed suitable to attempt to obtain DNA.

[65] On June 30, 2016 the CFS staff received a reference or comparison sample of blood related to this case. The sample was used to generate a DNA profile to compare to any of the DNA profiles in this case. A DNA profile was generated from the blood and compared to the DNA profile obtained from the underwear. The blood sample was submitted with a coded identifier rather than a name. Comparison samples coming in from persons of interest or consenting persons are given a code so their name is not associated with any DNA profile. If there is an exclusion that link is broken so that the name is not connected to the DNA profile. The blood sample submitted on June 30, 2016 was later confirmed to be from R.D.M. There is no dispute at this trial that the comparison sample came from him.

[66] In July 2016 Ms. Kell reported that R.D.M. cannot be excluded as a source of the major profile from the underwear cut out. The probability of a randomly selected person unrelated to R.D.M. sharing this DNA profile was 1 in 26 trillion. Her report, dated July 18, 2016, was filed as an exhibit on consent.

[67] Ms. Kell was shown Exhibit 3 at this trial: the brown paper bag containing the underwear. She observed the case file number from the CFS as well as the initials of the technologist who screened the item. She also referred to a tag placed on the back of the underwear that also listed the case number as well as the item number assigned to it at the lab.

[68] Ms. Kell testified that the CFS staff conducted an acid phosphatase test on the underwear to examine for semen. She explained that acid phosphatase is water soluble. She would not expect to see acid phosphatase if the underwear had been laundered because acid phosphatase is removed in the laundering process. The presence of acid phosphatase in this case indicates that the semen was deposited on the underwear after the last time it was washed.

[69] Ms. Kell testified that the original submission to the CFS in 1990 indicated that vaginal swabs were collected that year. However, the swabs were not available to her in 2002. There was an anal swab stored at TPS that was not part of the initial submission in 1990 but was submitted later to the CFS for analysis. DNA was obtained from that sample but it was not suitable for comparison. It was a mixture of at least two profiles.

[70] Ms. Kell testified that when DNA or semen is deposited on underwear, as long as the underwear is stored so it is not exposed to high temperatures and as long as it is dry the semen and DNA could remain on the item for years. If semen is deposited in the vaginal cavity it is expected to be lost within the first two or three days. This expectation is based on the activity subsequent to the sexual interaction and how much semen was deposited in the first place.

[71] In cross-examination Ms. Kell agreed that if the underwear had never been washed or was new she could not tell if the semen was deposited at any particular point in time. In this case she also agreed she could not tell whether the deposit was on the inside or the outside of the underwear. If semen had dried on the underwear some months prior and had not been washed, and then the blood was deposited and eventually dried, it would present as if both were deposited on the same day.

[72] Ms. Kell was asked about various ways in which the semen could have been deposited on the underwear. She testified that given the amount detected it would need to be a direct contact with a source of semen. She would not expect this amount from a secondary transfer. If it was deposited on one object or surface, then placed on another, and then came in contact with the underwear there would be biological material lost with each step of the transfer. In this case her opinion was that the semen was deposited directly, either by drainage, ejaculation, or contact with a source of semen. If there was a significant or recent ejaculation on a floor area and the underwear was dropped in the semen deposit there could be a significant transfer of semen onto the underwear if there was sufficient moisture and contact. If the stain and underwear were both dry she would not expect the transfer to occur. She agreed that if a condom spilled a large deposit of wet semen and dry underwear fell into that there could be a transfer. There could also be a transfer if a pair of sufficiently damp underwear was placed on a fairly dry deposit of semen with time to rehydrate it.

[73] Ms. Kell agreed that she could not determine whether the pubic hairs submitted to the CFS belonged to the complainant or to a third party. She also agreed that the anal swab is unsuitable for DNA testing, and therefore she cannot say whether the DNA on the anal swab matches the DNA contributor on the underwear.

[74] Ms. Kell agreed that if there was a substantial deposit of sperm onto a pair of underwear, into a thick area of the fabric allowing the sperm to be trapped under the fabric, some of the sperm could be retained even if the underwear was washed.

Analysis

[75] S.W. has described a particularly vicious sexual attack by two knife-wielding men. She testified that she was raped multiple times, threatened, and robbed. These allegations relate to events that occurred over 28 years ago. S.W. could not identify either of the attackers then or at trial in 2018. The overarching issue in this case is identity. The case against R.D.M. is circumstantial. That does not mean it is a weak case. Where a case rests on circumstantial evidence in order to convict I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 18-19; R. v. Al-Kazragy, 2018 ONCA 40, at para. 27.

[76] Based on Melissa Kell’s DNA evidence the defence does not dispute that the accused’s semen was found in the crotch area of the complainant’s underwear. That is obviously highly relevant and significant evidence where sexual assaults are alleged. However, without more, that evidence, as important as it is, does not prove the offence. There must be other evidence linking the deposit of semen on that garment in that location to the relevant time and place.

[77] The probative value of DNA evidence in identity cases depends on whether circumstantial evidence can place the accused in the offence’s area during the time the offence was committed: see R. v. Ibrahim, 2014 ONCA 157, 318 O.A.C. 1, at para. 30. The offences in R. v. Mars (2006), 206 O.A.C. 387 (Ont. C.A.), arose out of a home invasion robbery. The only issue at trial was identity. The evidence connecting the accused to the robbery was his fingerprint on a pizza box that was used as part of a ruse to gain entry to the apartment. Neither victim could identify the accused. There was no way of identifying when the accused placed his fingerprint on the box. The accused was convicted. On appeal the convictions were quashed and acquittals entered. Doherty J.A.’s comments at paras. 19-21 inclusive are apposite to the issue before me:

19 The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime.

20 In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.

21 The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time of the robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box. Put somewhat differently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection with the robbery a more likely inference than the inference that he touched the pizza box at some other time.

[78] Counsel for R.D.M. pointed out various inconsistencies in S.W.’s evidence. S.W. did not dispute that there were inconsistencies in her evidence. These inconsistencies included:

• whether her friend Shannon was working in the area that night;
• whether she performed a sexual act with her first customer that night;
• whether she saw her hairdresser Tim closing his nearby shop after she dealt with her second customer;
• whether she brought spare underwear with her that evening;
• whether each attacker brandished their own knife or whether one knife was passed back and forth between them;
• whether she was on her hands and knees during the sexual assaults or in other positions; and
• whether she kept her money in the insole of her heel or inside her nylons that night.

[79] I have carefully considered these and other inconsistencies that counsel referred to. Individually and cumulatively these inconsistencies do not detract from S.W.’s reliability and consistency related to certain critical matters that I will refer to.

[80] Those inconsistencies that relate to events before the attacks concern matters that were not remarkable bearing in mind that S.W. was engaged in the sex trade and dealt with up to four or five customers per night. These include the following:

• whether her friend Shannon was working in the area that night;
• whether she performed a sexual act or just talked to the first customer. She was paid in any event for whatever the customer requested;
• whether she saw her hairdresser closing his nearby shop after she dealt with the second customer;
• whether she brought spare underwear with her that night; and
• where she kept her money.

[81] S.W. also acknowledged inconsistencies related to her memory of the attacks. She was clear and consistent that as each of the two attackers raped her the other held a knife at her throat. In my view it is of less moment in assessing her reliability whether two knives were used or one knife was handed back and forth. She was also clear and consistent that each of the two attackers raped her in the darkened area. Whether she was on her hands and knees for all the sexual attacks is of less importance in assessing her reliability.

[82] S.W. was consistent and reliable on the following critical issues:

• In August 1990 the only person she had unprotected sex with was her boyfriend;
• She would not have sex with her boyfriend when she was menstruating. She would have sex with customers when she was menstruating. She was menstruating on August 17, 1990;
• Her invariable practice as a sex trade worker was to place two condoms on her customers. She used two condoms whether she was performing oral or vaginal sex;
• The only unprotected vaginal sex she participated in during the early hours of August 17, 1990 was with her two attackers;
• At the first opportunity after the attacks she immediately grabbed her clothes, got dressed, and flagged down a cab to take her to the hospital;
• She later handed the clothing she wore during the attack to the nurse at Women’s College Hospital; and
• Both attackers ejaculated inside her on their initial attacks.

[83] The DNA evidence from the semen in the crotch area of her underwear indicates a major and minor contributor. R.D.M. is effectively identified as the major contributor. The location and amount of DNA material in these circumstances is significant circumstantial evidence that R.D.M. was one of S.W.’s attackers.

[84] Counsel for R.D.M. submits that the underwear’s chain of continuity until it was examined in 2002 has unexplained gaps. In some cases continuity of exhibits is a critical issue. Exhibit continuity is a factual issue, albeit sometimes a critical factual issue. It is not an issue that the Crown is required to prove beyond a reasonable doubt. It is a matter of weight to be attributed by the trier of fact: see R. v. Andrade (1985), 18 C.C.C. (3d) 41 (Ont. C.A.), at pp. 61-62. In some cases there are gaps in the evidentiary record that cast significant doubt on conclusions that may be drawn from the evidence. This is not one of those cases.

[85] In this case there is nothing about the chain of continuity of the underwear S.W. wore that casts doubt on the validity of Melissa Kell’s DNA analysis. I accept her conclusions that the semen was deposited since the last washing of the underwear, and that the amount detected would be from direct deposit: being drainage, ejaculation, or a source of semen. The possibility that R.D.M.’s semen deposit in this quantity in this location on the underwear in these circumstances other than direct sexual contact with S.W. that early morning is speculative at best. It is not a reasonable or plausible scenario.

[86] Worded in another fashion, I do not see a basis on the evidence to find an exculpatory hypothesis as to how R.D.M’s semen was deposited on that garment in that location other than direct sexual contact.

[87] The cumulative effect of the evidence that I find credible and reliable is that I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that R.D.M. was one of the two armed attackers who raped, threatened, and robbed S.W.

Result

R.D.M. is guilty on all counts.

B. P. O’Marra, J.

Released: September 27, 2018