WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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.

486.6 Offence. —(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.

Court File and Parties

Court File No.: Belleville Y120267 Date: 2013-03-05 Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

Z. G., a young person

Before: Justice Malcolm

Heard on: March 4 and 5, 2013

Reasons for Judgment released on: March 7, 2013

Counsel:

• Lynn Ross for the Crown
• Jason Easton, counsel for the accused Z. G.

Judgment

Malcolm J.:

[1] Z. G. was charged with committing a sexual assault on H. A. on or about August 26th, 2012. Mr. G. was born on […], 1997 and was 15 at the time of the alleged offence.

[2] The Crown elected to proceed by indictment. The trial was held on March 4 and 5th, 2013.

Defence Admissions

[3] The defence admitted that Ms. A. had been sexually assaulted, including attempted or actual vaginal intercourse, attempted or actual anal intercourse, oral sex and attempted fellatio.

The complainant also suffered several bites including at least four serious injuries on her neck, chin and lip that had broken the skin and became infected. It is not denied that the complainant suffered these injuries and the photographic evidence was entered on consent of the defence.

[4] The only issue at trial is that of the identity of the perpetrator. The accused young person did not testify at the trial which is his right.

Background and Evidence as to the Assault

[5] The assaults took place after a party hosted by N.G. at H[…] Avenue, Belleville, Ontario and surrounding grounds ended abruptly as a result of the local police attending.

[6] It has been estimated that there were several hundred young people at the party. Many of the young people, including the complainant, left the H[…] property through the east adjacent woodland trail and dried up creek bed to end up at a new home subdivision that borders on F[…] Ave.

[7] Ms. A. testified that there had been a general invitation to the party on Facebook. Her father, who lives on Vancouver Island, was visiting the area and he dropped her off around 9:30 or 10:00 pm. She was 13 years of age at the time of the party.

[8] Her father was asked to park up the road but he replied that he was only dropping off his daughter. At this time there were over 100 people at the party. N.G. who testified estimated there may have been 700 or 800 people at the party.

[9] Ms. A. met her best friend M. H. and another friend K. S. when she arrived at the party. Both of her friends were drinking at the party. She did not drink because her father had allowed her to have her tongue pierced that day and she had been warned not to drink by the technician. Ms. A.'s father gave her a water bottle with mouthwash in it.

[10] Early in the evening Ms. A. observed an encounter between M.H. and a boy. M.H. had approached him and he told her to "Fuck off". M. said to Ms. A., "Z. is being such a jerk". The complainant was also aware that K.S. and Z. had "wheeled". She said that they had done things that people do when they are in relationships. She did not know Z's surname at this time.

[11] Ms. A. said she had been at the back of the house for about an hour and a half when the police showed up. The party goers quickly dispersed in different directions. Ms. A. became separated from her friend M.H. and she was with A. T. and N. G. She lay down in the tall grass at the side of the property. The property was approximately one acre and had a very long backyard. Photos of the house, yard and surrounding woodland were made exhibits.

[12] They waited there until things quieted down then they walked to the east through a path where there were some boards and they ended up on a street with some new homes and some under construction.

[13] From the evidence of Mr. Woytenko a local homeowner and member of the Canadian Armed Forces, I know this to be Kawartha Court. He testified that perhaps 200 or 300 kids travelled through the side of his property. He had just recently moved to this home.

[14] The complainant said there were 20 to 30 people walking that way. Because she could not find M.H. she wanted to go back to find her. She said A. would have gone with her but N. said no so she went by herself.

[15] On the way back to the house at H[…] she encountered Z. on the street. She had seen him earlier in the evening. She told him she was looking for M.H. and he said that he would help her look.

[16] She asked his name because she hadn't talked to him before. He introduced himself as Z. and she questioned Z. G.? He answered yes. She had heard of Z. G. On cross examination she admitted that she would not have known if this was actually Z. G. as she had never seen a photo of him before. He told her that he liked her butt. She said that he smelled of alcohol.

[17] She said that behind the house there was a pile of rocks. Mr. Woytenko and the investigating officer described this area as having rebar, discarded concrete and other debris. Here Z. started kissing her. She said this was fine with this. She didn't think anything of it.

[18] Then he asked her to sit down and she agreed. He told her that he loved her and wanted her to be his girlfriend. He asked her to have sex with him and she said no.

[19] She testified that at this time he is leaning over her tugging at her clothing. She said she didn't want to struggle; she didn't want to be hurt. He is telling her that he loves her and wants her to be his girlfriend. She tells him he is drunk and he says no.

[20] He bit her three times on the neck and on the check and on her lip. She said it was very painful; the photos would support that these were not trivial injuries, not love bites or "hickies".

[21] She testified that she didn't want to be hit and she didn't know if he had a weapon. She just did what he said. Even when he got his pants down and there was a chance for her to get away she said she didn't because she was afraid.

[22] She kept saying that she had to get M.H. He persisted. She doesn't think there was vaginal penetration and if there was it was just "in and out". Then he just stopped and tried to get her to give him a blow job. He grabbed her hair. She did not comply.

[23] Then he pushed her down again and said to be calm and he kissed between her legs. He bit her stomach. During this time he continues to say that he loves her and wants her to be his girlfriend.

[24] Ms. A. is able to get away to behind another home beside the Woytenko home where there is no sod but the home looks occupied. She hoped that he would not know where she was but he follows her and she stays.

[25] At this point she has only her underwear and shirt on. Her pants and shoes are in the location of the first assault. He asked her to lie down and on her back and be calm.

[26] She lay on her stomach because she didn't want to see what he was doing to her. His penis entered her anus. She said it may have taken a minute. Then he stood up and called her a stick and stood and said something that she couldn't understand. He then left.

[27] The evidence of the complainant is compelling, credible and reliable. She was not shaken on cross examination. Although she was emotional describing the first assault she did not exaggerate or try to present herself in a positive light. Any inconsistencies in her evidence are not material.

[28] Further, the description of the location of the assaults is consistent with the evidence of the Mr. Woytenko, Mr. N.G. and the investigating officer. It is consistent with the clothing found at the scene. It is consistent with the dirt found on her forehead and hair by the attending nurse the next day.

[29] I accept that the sexual activity was clearly not consensual despite the commentary of the assailant that she should be calm and he loved her and wanted her to be his girlfriend. The complainant was afraid and when she was compliant it was only out of self-preservation.

[30] After the assaults she goes back to find her jeans and shoes. She is successful in finding her jeans. She then goes to the N.G. home and knocks on the door. No one is home. She then crosses H[…] and a man stops his car and said she looks beat up and does she want him to call the police. She declines and goes to her friend M.H. and C. H.'s house. She was going to stay there because her mother did not know that she had been to this party.

[31] She meets up with C.H. They go on a hunt for their friends and she tells people what has happened to her. Later they meet N.G. and he notices that the girl with C.H. (the complainant) is trying to hide herself. He notices she is wearing a sweater and has bruises or maybe bite marks on her neck.

[32] Eventually Ms. A. goes back to C.H.'s home. It is only the next day that she sees M.H. She feels that M. is looking at her with shame when she understands what has happened. Two days later when Ms. A. is able to go on Facebook she finds that there is quite a campaign against her with death threats and very hurtful comments because of her disclosures to their friends and the subsequent arrest of the accused young person.

[33] Ms. A.'s father comes to get her in the morning takes her to her mother's home. There she confesses to her mother. The complainant told her mother of the assaults and the name of her assailant. Her mother went into a different room and called the police. That morning the complainant is taken by her mother to the hospital.

Forensic Evidence

[34] Unfortunately the criminal investigation of the assault was fraught with difficulties. A very experienced nurse, Sarah Layman, from the Domestic Violence and Sexual Assault team attended to Ms. A. at the Belleville General Hospital on August 26th, 2012 at 11:45 am.

[35] The complainant was very emotional and distraught after she was asked to give samples for the "rape kit" as she called it. She wanted to be examined by a female doctor.

[36] Because of her age the nurse called the Children's Aid Society. Normally someone from the Sexual Assault Centre would have been present for the support of the complainant but in this case there appeared to be no support person other than Officer McMurter from the Belleville Police Services and the officers who took the forensic photographs. This was less than ideal for a traumatized young complainant.

[37] The photographs of the injuries were taken by Constable Lynch on August 26th, 2012, the day after the assaults. The bite marks were visible, quite red, bruised and in the case of the neck visibly crusted over. Luckily for the complainant none of the bites resulted in permanent scarring although some of them did become infected.

[38] The nurse described the five hour hospital stay as a "kerfuffle". It seems to have been chaotic and less than perfect.

[39] She couldn't leave the sexual assault kit in the room with the complainant so she had to wait until the forensic officer attended so she could leave the room to call the Children's Aid Society and to call for a female doctor. There was no evidence as to a Children Aid Society worker attending on the scene so I assume they did not. Ms. Layman testified that despite her best efforts she could not obtain a female physician from Belleville or Kingston who could examine Ms. A.

[40] Because of all of the delays and problems only very cursory "gentle" swabs were taken by the male attending physician of the vaginal and anal area of the complainant. The swab of the bites was totally overlooked and was not taken.

[41] The kits were sent to the investigating officer, Detective Sergeant Doucette to send to the Centre of Forensic Science.

[42] The evidence of the forensic biologist James Currie of the Centre of Forensic Science was admitted by the defence without the necessity of Mr. Currie testifying. This includes a statement of qualifications, report of November 15, 2012, report of February 1, 2013, report of February 28, 2013, document titled bodily fluid information and lastly an email from the Assistant Crown Attorney Lynn Ross to Mr. Currie on March 4, 2013 and Mr. Currie's response on March 5, 2013.

[43] In summary, one of the genital samples taken did indicate some male DNA present but it was insufficient to generate a profile. Among other reasons this could have been as a result of the samples being taken differently from the protocol suggested or it could have been due to a lack of ejaculation.

[44] The sample taken from the complainant's right-hand fingernail detected male DNA but of insufficient amount to generate a profile.

[45] A sample from the inside crotch of Ms. A.'s underwear had P30, a constituent of semen in multiple areas of the sample. However P30 can be detected in other bodily fluids so this is not conclusive of semen nor was the sample sufficient to be analyzed.

[46] The only conclusive DNA result was obtained from a t shirt found in the location of one of the assaults. This blue t-shirt has on its front the following printed in white lettering: "If you see da police warn a brother" The logo of Warner Brothers is underneath the words warn a brother. Mr. Currie's February 28th report indicated that "the probability that a randomly selected individual unrelated to Z. G. would coincidentally share the observed DNA profile is estimated to be 1 in 100 quadrillion". It is not admitted that this T-shirt belonged to the accused young person.

[47] The evidence of Ms. A. at trial was that Mr. G. was wearing a green or dark blue T-shirt with white lettering on it. He took off the t-shirt when he was trying to remove her clothing. She described it as having dirt on it and slight staining. She also described Mr. G. as having dirt around his neck.

[48] She testified that at the end of the evening he had no T-shirt on and he was barefoot. Shoes were also found at the location of the T-shirt but have not been identified. Ms. A.'s black sandal with pink hand painted polka dots was also found at the location.

[49] Robert Woytenko testified that he found the t-shirt and sandal among other items of footwear and clothing on August 26th, 2012 at the back of his property at Kawartha Court. He gave these to Detective Sergeant Doucette. These items were found in the areas described by the complaint as the place where she was assaulted. Continuity of the evidence is not disputed.

[50] N.G. testified that he knew Z. G. and he saw him during and after the party. At the end of the evening or early the next day he described Z. as being really drunk. He described him as too drunk to walk but he was clearly walking on H[…] when he saw him. He said Mr. G. had no shirt and no shoes.

[51] Further Mr. N.G. testified that earlier in the evening he had a problem with Mr. G. being aggressive with a few people. He said he had to lay hands on him. He said he probably punched him.

[52] He said that Z. was yelling at N.G.'s friends. N.G. told him not to fight with "George" it will not end well. He said he got mad at Z. and threw him down and punched him but he doesn't remember him bleeding. He said Z. left the party before the police came.

[53] He described Z. as being 5'5. He described a tattoo on his chest. He thought it was an eagle or something. A number of photographs of Z. G. were entered as exhibits on consent. The tattoo actually depicts the words "Trust No-One". I find Mr. N.G.'s evidence credible. Although he was drunk and describes a period when he blacked out, his description of Mr. G. is very accurate and supported by the complaint's evidence. There is no reason for me to think there has been any collaboration in their evidence.

[54] I accept that the T-shirt in question belonged to Mr. G. To paraphrase from R. v. McCartney [2012] O.J. No. 1319 a Ontario Court of Appeal decision of Justices Rosenberg, Armstrong and Juriansz, it would be a remarkable coincidence if this shirt had not been worn by Mr. G. I don't believe that it is such a coincidence.

Photo Line-up

[55] On August 27th, 2012 the complainant was given a photo line-up by Constable Giouroukas at the Belleville Police station. This was videotaped. The procedure was in accordance with the "Sophonow" Inquiry recommendations; she was not the investigation officer.

[56] The complainant appeared to listen carefully to the instructions read to her and asked for clarification. She appears a bright, intelligent but subdued girl. She is asked to shuffle the photos and look at them one by one. She is told to put yes or no on the back of the photo after indicating a verbal response. She is to date and sign each of the 12 photographs.

[57] The first photograph she examines for one to two minutes. She says she is not sure she asks what she is to do if she is unsure and she is told that she can answer only yes or no. Then the officer brings a table closer to her and says "Here I'll bring the table closer so you can write on it".

[58] Then she is asked by the officer "Well, what's your answer?" Ms. A. says "it looks like him but I'm nervous to say if it's him because I don't want to get the wrong person". She is told to do it to the best of her ability and what she recollects. After that she gives yes as an answer and she says she chooses this photo. She is asked why she said yes to the photo and she says because he has the brown eyes and the same facial appearance that the assailant had.

[59] She then goes very quickly eliminating the next three photographs. She takes a second to look at and write on the photos.

[60] At photo 5, which is the accused young person, she quickly (within a second) says yes and writes on the photo. She says that she recognizes the photos by the mark on his neck she says "he had the same mark on his neck. And the way his mouth is."

[61] The last six photos are very quickly dealt with by negative responses.

[62] I had the opportunity to review the videotaped line up during the trial and again before submissions of counsel. It is clear that the complainant is much more confident with photo 5 than 1. She recognizes the mark on the male's neck which is actually a tattoo.

[63] She was unsure about photo 1. The male shown in photo 1 was not in Belleville on the night in question and he has been excluded as having the opportunity to have assaulted the complainant. This evidence was admitted by the defence.

[64] I must be careful not to confuse confidence with reliability in this photo line up. Miscarriages of justice have occurred when witnesses have an honest but mistaken belief as to an accused. R. v. Jack 2013 ONCA 80, [2013] O.J. No. 519 Ontario Court of Appeal decision by Justices Juriansz, Watt and Epstein. Para 12-17.

[65] I was given the original photos used in the line-up and most of the individuals shared hair and eye colour and length and similar age. The males in Photo 1 and 5 do have similar characteristics in that both have open, young looking faces. Both appear to have brown eyes and short hair although I heard testimony that Z. G. has blue eyes.

Other Evidence as to Identity

[66] On cross examination the complainant admitted that she didn't tell the investigating officer Detective Sergeant Doucette when he interviewed her on August 27th, 2012 that the accused had a neck tattoo. I assume that the interview took place just prior to the photo line-up.

[67] The witness answered that she wasn't sure what was on his neck whether it was dirt or a mark. In fact at the photo line-up she calls the tattoo a mark, not a tattoo. I do not find that this omission makes her photo line-up identification less reliable.

[68] Further it was suggested in cross-examination that after the accused took his shirt off she should have noticed the tattoos on his arms and chest. At this time she was being assaulted and they were in a dark area. I don't make any adverse findings.

[69] She did tell Officer Doucette about some symbols on the forearm of the accused. She said she thought they were not professionally done and maybe Chinese symbols. I had the opportunity to view the tattoo on the accused's forearm from his intake photos that were made exhibits. I could not tell until the investigation officer testified that they were letters spelling the name G. To me they looked like symbols. This tattoo is distinctive and assists in weighing the other identification evidence of the complainant.

[70] The complainant said that the assailant had brown eyes when he had blue eyes. Further she said that he appeared tan in the dark. I find that these two inconsistencies are not sufficient to affect the weight of her identification evidence.

[71] In cross examination the witness admitted the assaults were traumatizing and she didn't notice the tattoo on the accused's chest. She also admitted that it was dark.

[72] N.G., who saw the accused on the street when he was not wearing a shirt, thought the tattoo on his chest was an eagle. He was not traumatized and there were street lights and he did not correctly remember the tattoo.

[73] I find that the omission of the complainant to notice this chest tattoo in all of the circumstances was understandable and does not lessen the reliability of the rest of her evidence.

[74] I accept that when there is identification of a stranger, the identification is fleeting, there are stressful circumstances, the lighting is not good and distinguishing features are not noticed then the Court may need to be very careful in the weight given to eye witness testimony. I considered the case of R. v. Gonslaves, a decision of Justice Hill of the Superior Court dated April 16, 2008 paragraphs 35 to 53.

[75] Here the assailant was not a total stranger, the observation is not fleeting. The assault took perhaps 20 minutes and there is observation of him before the assault and in a more lighted place close to the house party.

[76] H.A. described his forearm tattoo and his neck tattoo or mark. She was very accurate as to his weight and height. She said 5'5 or eye level with her and he was 5'3. She said his weight was 130 when she was testifying as to why she could not push him off her during the assault. He weighed 135. This is positive corroboration of his identity.

[77] She described the T-shirt that she was wearing. This is the shirt found at the site of the assault with the blood and DNA of the young person on it.

[78] At the end of the evening she testified that the accused was not wearing a T-shirt or shoes. This is corroborated by N.G.

[79] Although Z. G. was a stranger to the complainant before August 25 or 26th, she met him before the assault. She saw him interact with M.H. She saw him later in the evening and asked his name and he said Z. He agreed to Z. G. on further questioning.

[80] Defence submissions suggest that Z. is a common name for a male of the age of accused young person. I have no evidence to support that submission and I cannot take judicial notice.

[81] Further it is the defence position that the person who assaulted Ms. A. gave his name as Z. G. but he was not Z. G. . It is suggested that no one would give their full name and then go and rape a girl. I cannot find any merit in this argument.

[82] The assailant was drinking heavily, the parties started with consensual kissing. I doubt he premeditated this assault.

[83] Ms. A. did admit on cross examination that she would not know whether Z. G. was the person she met at the party and who assaulted her.

[84] However she identified him from a properly conducted photo line-up with the distinguishing mark or tattoo on his neck.

[85] She also identified him in court although she qualified her identification with saying that he changed the colour of his hair, he was wearing glasses and he had acne. I can take notice that these observations are correct.

[86] Triers of fact must be wary of in dock identification but here the assault and the trial are approximately six months apart, not years apart. Generally an in dock identification is entitled to little weight. Although I don't give this considerable weight given all the other evidence I do find it somewhat corroborative. R. v. Pelletier 2012 ONCA 566, [2012] O.J. No. 4061 decision of the Court of Appeal Justices Armstrong, Watt and Then at Paragraph 93.

[87] It is not necessary that the complainant be absolutely certain about every identifying feature of the accused. What is important is that the evidence considered as a whole convinces me beyond a reasonable doubt. Here the evidence is more than sufficient to satisfy me beyond a reasonable doubt that Z. G. sexually assaulted H. A. on or about August 26, 2012.

[88] I find Z. G. guilty of committing a sexual assault on H. A. as charged.

Released: March 7, 2013

Signed: "Justice Malcolm"