WARNING

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) , (2.1) , (2.2) , (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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.

486.6(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.

(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.

Court of Appeal for Ontario

Date: 20230502 Docket: C69890

Fairburn A.C.J.O., Lauwers and Miller JJ.A.

BETWEEN

His Majesty the King Respondent

and

Krishan Dhillon Appellant

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the appellant Jeremy Tatum, for the respondent

Heard: April 18, 2023

On appeal from the conviction entered by Justice Gisele M. Miller of the Superior Court of Justice on March 31, 2021, with reasons at 2021 ONSC 2441.

Reasons for Decision

[1] This is an appeal from conviction. We dismissed the appeal with reasons to follow. These are the reasons. [1]

[2] The appellant was convicted of sexual assault. The complainant had no memory of the event owing to her extreme level of intoxication. The appellant does not challenge the trial judge’s finding that the complainant did not have the capacity to consent. The central issue on appeal is whether the trial judge erred by misapprehending the DNA evidence, which misapprehension is said to have resulted in an unreasonable verdict.

[3] The complainant recalled being at a bar and consuming intoxicants. The next thing she recalled was waking up and taking a taxi home. Once at home, she realized she was not wearing her shirt, bra or underwear.

[4] Realizing her state of dress, the complainant exchanged text messages with the appellant, who was in the group of people she had been with the previous evening. He was an owner of the bar where they had been. While the appellant said “Nothing” had happened, and continued to deny that anything sexual occurred throughout the text exchange with the complainant, he also said things that the trial judge perceived to be incriminating in nature, particularly when taken in the context of all of the evidence. For instance, he commented that the complainant’s “pussy was so wet” and that she had removed her underwear to “get air”. He also commented on the fact that he had seen her “sexy ass” and, when she asked him what happened to her “ratty” thong, he was the one who informed her it was in her purse with her bra.

[5] DNA tests revealed that the appellant could not be excluded as the source of DNA derived from bodily substances found on the complainant’s right breast, on her external genitalia and in her vagina. While the trial judge was prepared to accept that the appellant’s DNA may have been deposited onto the appellant’s breast through non-sexual means, and was even prepared to accept that the complainant may have inadvertently transferred the DNA to her external genitalia, the trial judge rejected the submission that there was a rational basis to explain the DNA found inside of the complainant’s vagina, other than that the appellant touched the complainant in that location. We see no basis upon which to interfere with that conclusion.

[6] In essence, the appellant claims that the verdict was unreasonable because there was a potential explanation of indirect transfer of the appellant's DNA into the complainant’s vagina. We disagree. The trial judge’s willingness to accept the possibility of innocent transference-based explanations for the DNA found on other locations of the complainant’s body does not undermine her conclusion that indirect transfer could not provide a rational explanation for the DNA found inside the complainant’s vagina in this case.

[7] The appeal is dismissed.

“Fairburn A.C.J.O.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”

[1] The appellant advised that he wished to abandon his sentence appeal. We therefore dismissed the sentence appeal as abandoned.