W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. Manjra, 2009 ONCA 485
DATE: 20090615
DOCKET: C46191
COURT OF APPEAL FOR ONTARIO
Feldman, MacPherson and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Faruk Manjra
Appellant
Marcy Segal, for the appellant
Alexandra Campbell, for the respondent
February 13, 2009
On appeal from the conviction by Justice Nancy Mossip of the Superior Court of Justice, dated June 27, 2006, for sexual assault and sexual interference, and the sentence imposed on November 3, 2006.
Feldman J.A.:
INTRODUCTION
[1] Following a three-day trial, the trial judge found the appellant guilty of sexual interference of a seven-year old girl. He was sentenced to 17 months in custody followed by 24 months of probation. The appellant appeals both his conviction and sentence. For the following reasons, I would dismiss both appeals.
FACTS
[2] On the afternoon of August 24, 2003, the complainant, a seven-year old girl, visited the house next door where the appellant lived. The appellant lived in the house along with his brother and sister-in-law, their 18-month old baby daughter and the sister-in-law’s mother (the grandmother). The complainant and possibly some other neighbourhood children were at the house to play with the infant. The complainant had been there many times before.
[3] The complainant said that when the grandmother took the infant upstairs to change her diaper, she was alone with the appellant in the kitchen, where he pulled down her pants and underwear and while on his knees, he “licked her privates.” The complainant then pulled up her pants, told the appellant her mother was calling her, and went home. The trial judge found that the complainant told her mother of the incident at the first instance at which they were alone together. Her father immediately took her to the police station where she gave a statement. After her interview, at approximately 10:00 p.m., the police seized her underwear, pants and t-shirt and eventually sent them to the Centre of Forensic Sciences. The complainant also went to Sick Childrens’ Hospital where a nurse took two external genital swabs and one buccal swab from the complainant for DNA testing. According to the report of the Centre of Forensic Sciences, those swabs were delivered by the police to the Centre for testing on March 22, 2004 and were tested on March 25, 2004.
[4] With another officer, Police Constable North was sent to arrest the appellant on the evening of August 23, 2003. When he knocked on the door, the appellant’s brother answered, and the appellant then came to the door. The officer and the appellant spoke on the driveway. The officer testified that after he arrested the appellant for sexual assault, read him his right to counsel and cautioned him, the appellant stated: “My brother may know a lawyer.” He also said he understood the caution and the advice about a legal aid lawyer. He then uttered the statements: “I will talk to you”, “It was a joke”[^1], and “I shouldn’t have kissed her.” The appellant denied that he made these statements and testified that he did not know English and consequently did not understand what the officer had said to him.
[5] At the station the appellant voluntarily gave a buccal swab of his saliva for DNA testing. Constable Rehan acted as an interpreter during the appellant’s interview at the police station, though he does not appear to have used the appellant’s first choice of language. Constable North testified that he was quite sure the appellant understood what was said to him in English at the police station, but admitted that the appellant appeared more comfortable speaking with the aid of the interpreter.
[6] Following a voir dire, the trial judge ruled that the appellant made the statements reported by Constable North, and that they were voluntary.
[7] The complainant testified. She was ten years old at the time of the trial. She had viewed her videotaped statement before testifying. The appellant testified at the trial as did his brother and the grandmother. The appellant denied the allegations. He said that he was never alone with the complainant. This was corroborated by the grandmother. Both witnesses testified through an interpreter.
[8] The Crown tendered into evidence, on consent, the report from the Centre of Forensic Sciences on the DNA testing. No witness testified regarding the report, except for Constable Blashuk, who interviewed the complainant at the police station on the night of the assault. In cross-examination, she answered that she was familiar with the report. Nor did any witness testify regarding the taking of the samples. The report concluded that only the complainant’s DNA was found on the external genitalia swabs. No DNA of any other person was found. Therefore, no comparison could be made with the DNA sample provided by the appellant.
[9] The trial judge viewed credibility as the central issue. She rejected the appellant’s evidence that he did not make the statements to the officer on arrest, that he did not speak English and did not understand the officer, that he was never alone with the complainant and that he did not do what the complainant alleged. Having accepted the evidence of Constable North and having found that the appellant made the statements as reported by the officer, the trial judge concluded that those statements were evidence of a guilty mind, implied sexual impropriety on the appellant’s part, and formed a significant factor in deciding the guilt of the appellant. She found that the statements were evidence that the appellant had committed a sexual act. She also rejected as untrue the corroborative evidence of the grandmother.
[10] The defence relied at trial on the fact that only the complainant’s DNA was found on the external genital swabs that were taken that night. On that point the trial judge stated (para. 83):
Given the nature of the alleged assault, that is, “kissing” or “licking” the complainant’s privates for a brief time, common sense tells me that, many hours later, it is unlikely that there would be any foreign DNA left on the outer labia.
[11] Having concluded that the defence had not raised a reasonable doubt, the trial judge went on to consider whether the Crown had proved the charges beyond a reasonable doubt. She accepted the complainant’s evidence as reasonable and did not find any significant inconsistencies in her evidence. She concluded that the complainant’s testimony was accurate and truthful. In doing so, she also took into account that the seven-year old complainant had no motive to fabricate allegations of sexual impropriety against the appellant. The trial judge concluded that the Crown had proven the charges of sexual assault and sexual interference beyond a reasonable doubt.
ISSUES RAISED ON THE CONVICTION APPEAL
[12] The appellant raises two issues on his appeal from conviction:
1.Did the trial judge apply a disproportionate standard of scrutiny to the defence evidence, given by the grandmother and the appellant, as compared to the evidence of the complainant?
- Did the trial judge err by taking judicial notice of the properties of DNA?
(a) The Defence Evidence
[13] The appellant submits that the trial judge unreasonably rejected the evidence of the grandmother, who supported the appellant on the key point that he was not alone with the complainant. The grandmother also agreed with the appellant that there were other children there, in contrast to the complainant who said there were no other children. The presence of other children would have made it more difficult to commit the offence as alleged.
[14] The trial judge rejected the grandmother’s evidence. She found her evasive on how many children were in the home at the time and how many of them were girls. The trial judge identified this concern as a small point, but observed that admitting facts that are not significant is a hallmark of telling the truth. The trial judge found incredible the grandmother’s testimony that over a two hour period while she was sitting in the living room there was no time when she could not see the appellant, except when he was in his room or in the shower. The trial judge also viewed negatively the answers to two single questions posed by the Crown: (1) the grandmother said she did not know about the appellant’s level of English comprehension; and (2) the grandmother agreed with the suggestion that she came to court to help the appellant.
[15] One could take a different view of these factors than did the trial judge. Without being there to observe the witness, one could view the answers given to single questions through an interpreter as less significant than the trial judge believed they were. However, unless the trial judge has misapprehended the evidence, the weight she decides to put on it is subject to deference when considered on appeal: R. v. R.E.M., 2008 SCC 51, at paras. 54-57.
[16] The appellant also objects to the trial judge’s characterization of the appellant’s statements to the police officer. The trial judge viewed these statements as indicative of a guilty mind. The appellant submits that the statement, “I shouldn’t have kissed her”, which at most indicates that he had kissed the complainant on some portion of her body, is not sufficiently precise when judged in relation to the very specific charges against him to be indicative of a guilty mind for sexual assault and sexual interference.
[17] I do not accept this submission, for several reasons. First, in making the statement, “I shouldn’t have kissed her”, to the police officer, the appellant could have been referring to kissing the complainant’s private parts. Second, the trial judge reasonably viewed that statement as undermining the appellant’s credibility, as his evidence at trial was that he had not touched the complainant at all, except to pat her on the head. Third, the trial judge appears to have taken the statements “I shouldn’t have kissed her” and “It was a joke”, as attempts by the appellant to minimize the inappropriate acts he had engaged in with the complainant. This was a reasonable interpretation of the statements. Fourth, as the trial judge said, the statements could be taken as an admission by the appellant that he had “committed an inappropriate act.” In her view, they indicated that the appellant “knew he had done something wrong”. The trial judge was entitled to draw the inferences she did from the appellant’s statements on the basis of the evidence before her, including the circumstances in which they were made. As highlighted by the trial judge, the statements were spontaneous and spoken immediately upon the appellant’s arrest.
[18] The appellant submits that in contrast to her approach to the defence evidence, the trial judge failed to reconcile significant inconsistencies in the evidence of complainant. I do not agree. Most of the inconsistencies were insignificant. Furthermore, the trial judge was alive to the dynamics of the situation before her. She observed that while defence counsel was sensitive to the complainant’s young age, his questions were convoluted and could be confusing to a child. The trial judge carefully assessed the complainant’s evidence, found it reasonable and concluded that her story of the events made sense. Again, the trial judge’s view of the credibility of the complainant is entitled to the deference of this court.
(b) The DNA Evidence
[19] The second issue raised on the appeal is the trial judge’s treatment of the DNA issue. The Crown had tendered on consent the report of the Centre of Forensic Sciences indicating that there was no DNA from the external genital swab taken from the complainant except her own. The defence wanted the trial judge to conclude that because the appellant’s DNA was not found by the genital swab, either the complainant’s story was not true or at least there was a reasonable doubt. Instead the trial judge applied “common sense” to conclude that “many hours later, it is unlikely that there would be any foreign DNA left on the outer labia.”
[20] I agree with the appellant that the trial judge erred by drawing any conclusions regarding the ability of DNA to persist on skin. This is not a matter of common sense. Specialized scientific expertise is required to understand DNA and its characteristics: see R. v. Terceira (1998), 1998 CanLII 2174 (ON CA), 38 O.R. (3d) 175 (C.A.), upheld in brief reasons by the Supreme Court of Canada in 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866; R. v. Paul (2002), 2002 CanLII 13259 (ON CA), 62 O.R. (3d) 617 (C.A.); and R. v. Legere (1994), 1994 CanLII 3851 (NB CA), 156 N.B.R. (2d) 321 (C.A.). Courts in Canada require expert evidence to explain DNA and the significance of its presence or absence in respect of particular locations: see R. v. Simon 2008 ONCA 578 for the use of expert evidence on DNA testing of saliva samples taken from vaginal swabs; and R. v. Acorn, 2008 CanLII 8615 (ON S.C.) and R. v. Salehi, 2009 CanLII 2034 (ON S.C.) for the use of expert evidence in determining for how long sperm remains in the vaginal cavity for the purpose of DNA testing.
[21] The issue of drawing conclusions based on common sense or judicial notice where expert evidence was required was recently addressed by this court. In R .v. Perkins (2007), 2007 ONCA 585, 223 C.C.C. (3d) 289, Doherty J.A. restated the test from two Supreme Court of Canada cases, R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 53, and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para 48, for when judicial notice of an adjudicative fact may be taken. Judicial notice may be taken: (1) if the fact is so notorious and generally accepted as not to be the subject of debate among reasonable persons; or (2) if the fact is capable of immediate or accurate demonstration by resort to readily accessible sources of undisputed accuracy.
[22] How long DNA deposited from saliva remains on the body is not a fact that is either notorious or capable of immediate demonstration. Expert evidence on DNA would have been required for the trial judge to draw the conclusion that she did. No such evidence was adduced. The trial judge erred in her conclusion in this regard.
[23] However, in this case, the error cannot be said to have affected the verdict. Although put into evidence by the Crown, the DNA analysis was relied on by the defence. The trial judge rejected the argument that the absence of the appellant’s DNA on the genital swabs taken from the complainant raised a reasonable doubt regarding his guilt. She did not, however, use her conclusion as part of the proof that the appellant committed the offence.
[24] The question therefore is, was the evidence, without any expert explanation, capable of raising a reasonable doubt? Technically, any evidence or lack of evidence may cause a trier of fact to have a reasonable doubt about the guilt of an accused. However, in this case, where no expert evidence was led to assist the court to understand whether one would expect to find DNA from saliva after several hours, it would have been mere speculation for the court to draw any conclusion based on the bare findings in the report that was filed. This evidence should not have been filed at the trial without expert explanation to assist the court with the use that could be made of it: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 23-24.
[25] In my view, therefore, this is an appropriate case to apply the curative proviso in s. 686 (1) (b) (iii) of the Criminal Code. The proviso allows a conviction to be upheld even if the trial judge has erred, as long as “the error has not resulted in a substantial wrong or miscarriage of justice”. In its recent decision in R. v. Van, the Supreme Court discussed the criteria for the application of the proviso, at para. 34:
The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. First, that it is an error so harmless or minor that it could not have had any impact on the verdict. In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.
[26] This case falls into the first category. The case turned on credibility findings. The trial judge completely rejected the defence evidence as untrue and accepted the complainant’s evidence of what occurred. Had there been expert evidence suggesting that if the appellant had committed the offence, his DNA should have been found on an external genital swab from the complainant, that would have been very significant evidence in favour of the defence. However, there was no expert evidence at all on the point, making the findings in the DNA report either neutral or of no evidentiary value. Nor did the defence seek to tender any such expert evidence on appeal. On the state of the evidence presented to the court, the trial judge’s error could not reasonably have had an impact on the verdict. It did not cause any substantial wrong or miscarriage of justice.
[27] I would therefore dismiss the appeal against conviction.
ISSUES RAISED ON THE SENTENCE APPEAL
[28] The appellant was sentenced to a reformatory term of 17 months followed by two years’ probation. The Crown had asked for a sentence in the range of 15-24 months, while the defence sought a conditional sentence of less than six months.
[29] The appellant submits that the trial judge erred in principle by characterizing the circumstances in this case as a breach of trust. The trial judge considered this issue in detail in the context of the sentence submissions and her reasons. She acknowledged that the appellant was merely the next door neighbour of the complainant, that because the complainant had been at his house many times, they were not strangers, but that they did not have a relationship. The complainant referred to the appellant as “uncle” as a generic term.
[30] On the other hand, the complainant was a seven-year old girl visiting at the appellant’s house. He testified that he gave her and the other children popsicles. The trial judge noted that the appellant was a man the complainant should have been able to trust, and concluded:
The niceties of the extent of the relationship of trust in my view [do] not have to be resolved. The Crown agreed it may be on the low-end of a relationship of trust, but there is still some relationship of trust there and I so find.
[31] In my view, the trial judge was entitled to analyze the relationship, to conclude that it was at the low-end of a trust relationship, and to use that as an aggravating factor on sentence. The sentence imposed was within the range for this offence, even for a first offender.
[32] I would grant leave to appeal sentence, but dismiss the appeal.
DISPOSITION
[33] For the foregoing reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence but dismiss the sentence appeal.
Signed: “K. Feldman J.A.”
“I agree J. C. MacPherson J.A.”
“I agree Robert P. Armstrong J.A.”
RELEASED: “KF” June 15, 2009
[^1]: The officer’s notebook recorded this statement as, “I was a joke”, but he testified that he had miswritten and what the appellant actually said was, “It was a joke.”