WARNING

The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended

Date: May 30, 2014

Court File No.: Toronto: Y126996-00/Y126996-99

Parties

Between:

Her Majesty the Queen

— AND —

R.O.S. and A.D., Young persons

Before: Justice P. J. Jones

Reasons for Judgment released on: May 30, 2014

Counsel

Ms. Kim Walker — counsel for the Crown

Ms. Sangeeta Patel — counsel for the defendant A.D.

Mr. Marco Forte — counsel for the defendant R.O.S.

Judgment

JONES, P. J. J.:

Introduction

[1] R.O.S. and A.D. are young persons within the meaning of the Youth Criminal Justice Act who are charged with the following offences which allegedly occurred on September 20, 2009 in Toronto, Ontario, namely:

1. that A.D. did commit a sexual assault on T.L. to which R.O.S. and two unknown males were also a party,
2. that A.D. did commit a sexual assault on T.L.,
3. that A.D. and R.O.S. did steal the sum of one hundred and sixty dollars and a quantity of jewellery from T.L. and at the time did use violence on T.L.,
4. that R.O.S. did commit a sexual assault on T.L. to which A.D. and two unknown males were also a party,
5. that R.O.S. did commit a sexual assault on T.L.

The Evidence

T.L.

[2] T.L. testified that on September 20, 2009 she was standing near a bus stop at the corner of Dundas St. W. and Pacific Ave. in Toronto at approximately 3 a.m. with the intention of selling sexual services. She indicated that this was the first time she had engaged in prostitution. She told the court that she had decided to do this in order to earn money to support her five children.

[3] She testified that a young man approached her on foot from behind and offered her $30.00 for sex. She agreed and walked with him to the next corner. She testified that when she passed the next corner, she looked across the street and saw three men standing in front of the church located directly opposite. T.L. testified that she said to the man she was with something to the effect of, "But you are alone?" and he said "No, it's only me who's going to be with you."

[4] At this point, she noticed that there was a red car in a parking area just off the street. She testified that she became afraid because there were three other men, and that after she saw these other men, she was no longer consenting in her own mind to having sex with the first man, but she acknowledged that she did not tell this first man that she had changed her mind. She told the court that she did not tell him she had changed her mind about exchanging sex for money because she was afraid, and she felt that she had no choice but "had to finish what she had started". She told the court that she hoped that if she followed through with what she had agreed to do, she would be allowed to leave unharmed.

[5] She said that the first man opened the door of the car and indicated with his hand that she should get into the back seat. She entered the car. Then, he gave her $30.00 which she accepted. He put her bag and her jacket into the front seat. According to T.L., he then asked her to "kiss his anus", then to "kiss his penis", and then to have intercourse. Initially he was not wearing a condom. She complied with his requests.

[6] She recalled that at some point he pulled a condom out of his pocket. She stated that he ejaculated into the condom. (She testified that she did not know what happened to the condom.)

[7] In court the complainant identified A.D. as the first man, although she had been unable to identify him in a photo lineup in January, 2010.

[8] When the first man opened the door of the car at the conclusion of the sexual encounter, another man entered the car. The first man told her that the second man "would pay her too." The second man got in, and according to T.L., he paid her $30.00; she accepted the money offered, and she placed the money into one of her top breast pockets of her jacket. At the request of the second man, she performed oral sex on him. Then, he lay down on the seat and they had intercourse. At some point, but not initially, he wore a condom. (She did not know how he produced the condom and she was unable to indicate what happened with the condom after he left the car.) She said that he ejaculated, and then exited the car.

[9] She indicated that before he left, she saw the third man coming towards the car. As the second man exited the car, the third man entered the car. She said that she didn't leave because she was afraid, but acknowledged that she never indicated by word or by action that she was not consenting to exchanging money for sex. Before any sexual activity occurred, this third man, who appeared younger than the other two, told her that his boss was going to pay. She testified that initially there were three men across the street at the church, and since two had crossed the street to the car, she understood that the boss, the fourth man, was the one yet to arrive. (See her evidence corrected in later cross-examination, P. 92. lines16-22, transcript of June 18, 2013). She testified that the third man also used a condom which he provided and that she performed oral sex on this individual. She told the court that after he ejaculated into the condom, he took the used condom containing his seminal fluid and went out of the car, showing the condom to the rest of them and exclaiming "yaah". She indicated that she did not see him throw the condom away and did not know what happened to this condom.

[10] When the third man left, T.L. testified that the fourth man was at the door. He entered the car by way of the front seat on the driver's side. He told her to come to the front of the car. She indicated that she told him she was fine in the back of the car. He then said that, "They cannot be here because the police can see them if they pass by". At that point, he turned on the car and he drove across the street into a parking lot located behind the church. She noted that when they crossed the street she saw the other three men standing in silhouette in front of the church.

[11] After he stopped the car behind the church, he moved to the back seat of the car. At this point, he told her that he did not want to have sex, he only wanted her to "touch" him". She said that she began to masturbate him and after a minute or two he ejaculated. After he ejaculated, she noticed that his three friends were outside at the corner of the church near the back wall and then they began to run towards the car.

[12] She said that when she told him that his friends were there, he left the car. At that moment, she anticipated what was about to happen, and in fear, she closed the door and tried to lock the car, but was only successful in locking one door. When she tried to lock the other door, the fourth man opened the door "really fast", and then all of them (or what seemed like all of them) threw themselves into the back of the car (in cross she indicated that she lost all notion of how many there were in the car). She said that "they" were on top of her and someone took her gold necklace. She agreed that she was not sure how many hands were grabbing at her at this point.

[13] She got out of the car and she began to feel blows to her head and chest area. She said that she was being struck by all four individuals and that she knew this because she both felt the blows and she saw her attackers. In cross she agreed that it was dark, she was scared, and she was attempting to protect her head from the blows by putting up her hands to her head. She also indicated that it was not too dark to see her attackers and that between blows she would look up to see what was happening. She testified that she saw her attackers.

[14] When they were attacking her, they struck her on both temples, on her cheeks and on both sides of her jaw. At this point, in desperation, she said, "Leave me alone. I'm a police cop and someone is overlooking this." In response, she was told, "If you are police, then we're going to kill you." They continued to strike her on the head with something heavy, and she said that she felt that her "head was like a coconut". Her head began to bleed and she felt blood raining down her face. She said that she put her hands to her head and told them that she lied and that she was not a cop and that she "had children and wanted to see her children." At some point, the beating ended.

[15] Her assailants went into the car. When she saw that they were in the car, she walked towards the car and yelled, "Give my bag". At that point one of them said "Do you want to die" and he lifted his foot in order to kick her and showed her a knife that she described as one used to open metal cans or metal boxes and at another point she referred to it as a box cutter. She said that when she saw the knife, she told them to take everything.

[16] T.L. testified that at this time she feared for her life and was concerned that they might back up the car and kill her.

[17] Afraid for her life and hoping to be able to assist in identifying her attackers, she said that she memorized three numbers on the licence plate. (She said that the other ones were letters which she had difficulty memorizing.)

[18] At the moment she stepped back, she told the court that they shut the doors on the car and sped away.

[19] T.L. testified that in the altercation she lost three gold necklaces, which were ripped from her neck, and two valuable diamond rings. As well, she indicated that the $60 in her jacket pocket was stolen as was the money in her purse.

[20] T.L. walked to the police station and reported that she had been sexually assaulted and robbed. She was taken by ambulance to the Scarborough Grace hospital where she was treated and assessed through the administration of a sexual assault kit. The clothing that she was wearing that evening was seized as evidence. The next day she gave a two hour video statement to the police relating to the incident.

The Red Honda

[21] As I have indicated, T.L. identified that she was attacked and robbed in the early morning hours of September 20, 2009 by four young men riding in a medium sized red car with a licence plate ending in the numbers 971.

[22] In the afternoon of September 20, 2009, R.O.S. was involved in a motor vehicle accident and attempted to flee the scene of the accident on foot, but was stopped by the occupants of the car he struck from the rear. The car he was driving was a red Honda civic, previously reported stolen, bearing licence plate number […].

[23] When the car was recovered it was tested for fingerprints. As a result of the evidence that he had been the driver of the motor vehicle, R.O.S. plead guilty to possession of property under $5,000.00, fail to stop at the scene of accident, and fail to comply with recognizance, on November 16, 2009.

Fingerprint Evidence

[24] Neither A.D. nor R.O.S. took issue with the fact that their finger prints were discovered on the outside and the inside of the red Honda. R.O.S.'s fingerprint was found on the rear view mirror of the vehicle and A.D.'s fingerprint was found on the outside rear passenger door of the vehicle.

DNA Evidence

[25] It is not disputed that A.D.'s male DNA profile from semen was found on the inside of the condom found discarded in the parking area on Dundas Street W at Pacific and further DNA belonging to A.D. was also identified from T.L.'s neck area and on her jacket (both samples collected in the sexual assault kit). T.L.'s female DNA was found on both the inside and the outside of the condom.

[26] R.O.S.'s male DNA profile from semen was found on the right side of the front panel and on the back left hip of the underwear of T.L.. R.O.S. took no issue that he was the source of the DNA found on T.L.'s underwear but took the position that the presence of his DNA could only be explained by reference to what was described as "the science of transference" because, as he argued, he was not present during the encounter with T.L..

Injuries Suffered by T.L.

[27] When T.L. walked into the police station in the early morning hours of September 20, 2009, she was described as shaking and very distraught by the officer she first encountered. She was tearful, and disheveled. She had a major contusion to her left cheek bone, an abrasion in the area of her left temple, bruising to her left side of her jaw, scratches to her chest and a cut to her right index finger and a laceration to her head that was still bleeding at the time she attended the police division. It was clear that she had been struck forcibly on the left side of her face and head. After attending the police station, she was taken by ambulance to the hospital, treated and released that same day.

Evidence of A.D.

[28] A.D. testified in his own defence. He told the court that he and R.O.S. were good friends in 2009 and that he knew that R.O.S. was in possession of a stolen car in September, 2009 as he had driven in the car with R.O.S before September 20, 2009. On September 19, 2009, he testified that he contacted R.O.S. and, for the first time, asked to borrow the car for the evening without R.O.S. being present. R.O.S. agreed and he and his friend R. (he couldn't recall R. last name and did not know where R. lived) came to the lobby of R.O.S.'s building and were given the keys by R.O.S.

[29] A.D. testified he and R. drove around the area, and picked up food and generally "chilled out". Late in the evening they decided to go to 'The Junction' area (Dundas St. W and Pacific Ave) to pick up a prostitute. He said that he had done this previously on a couple of occasions, but on foot.

[30] He testified that he was the first man to approach T.L. that evening at the bus stop. He said that he approached her on foot, and said, "Hi, do you want to have some fun tonight?" and she said "Yes, how much are you willing to pay me." He said that he offered "40 bucks" and she agreed.

[31] He indicated that they walked to the car and "hopped" into the back seat of the car. As soon as they got into the backseat, she asked for the money, and he testified that he paid her the forty dollars agreed upon. Then, she told him to take off his pants, and according to A.D. it was T.L. who took the condom out of her purse and put the condom on him. He said that she performed fellatio on him and then they had intercourse. After he ejaculated, he said that she played with the condom "doing some stuff with it" saying "your penis is too big" and then she threw the condom out the window of the car. While he waited for R. who had followed him into the car, he said that he smoked some "weed". He said that "after R. was done, T.L. left and he hopped into the passenger seat and he and R. drove away from the area". He told the court that they then took the car back to the parking lot where he first located the car and put the key under the mat as directed by R.O.S. He said that he never saw T.L. after she left. He testified that he was never at the church that night, nor did he go to the parking lot behind the church, nor did he assault her that evening.

[32] He said that he has never discussed his encounter with T.L. with R.O.S., nor has he ever discussed his evidence on this charge with R.O.S.

Evidence of R.O.S.

[33] R.O.S. testified in his own defence. He told the court that he had never seen T.L. before her attendance in court. He said that he had not been with A.D. on the evening of September 20, 2009 when A.D. approached T.L. for an act of prostitution.

[34] He admitted that he was in possession of a red Honda Civic, licence number […], which he knew had been previously stolen, although he did not admit to stealing the vehicle. He testified that he had found the car "abandoned" in a parking lot near his building. He told the court that a number of months before he found this abandoned car, he had traded some weed for a master key that both opened and started the vehicle. He testified that he had been driving the car around for a number of weeks before he was involved in the accident which occurred on September 20, 2009. He had been smoking weed in the car, picking up and dropping off his friends and doing "basically everything" in the car.

[35] He told the court that, on many occasions, he had used the backseat of the car as a location to have sex with his girlfriend, T.S.. He said that he had sex with T.S. with and without protection. When questioned when he would use a condom, he indicated that if he were having oral sex he would remove the condom and often when he was having vaginal sex he would remove the condom "before I come". He testified that he did not recall when he last had sex with T.S. in the car before September 20, 2009, but he did recall that it was not on September 18 because he was working that night nor was it on September 19 because he had lent out the car to A.D. in the afternoon of September 19 and did not retrieve the car until the next morning.

[36] He told the court that he was not with A.D. when A.D. used the car to pick up a prostitute, later identified as T.L., and that he did not have sex with T.L..

[37] He testified that he went to bed around 11 p.m. on September 19, 2009. The next day he went to the parking lot to retrieve the car.

[38] He found the key in the agreed upon location and began to drive the car around. He acknowledged that he rear ended another car that day, and was apprehended attempting to flee the scene. He said he was alone in the car at the time of the accident.

The Issues

[39] Counsel for the defendants raised a number of issues:

1. Regarding R.O.S.:

Counsel for the defendant R.O.S. acknowledged that his client's DNA was found on the complainant's underwear and that R.O.S.'s finger prints were located on the car in which the sexual assault allegedly occurred.

R.O.S. testified that he had been in possession of this stolen car for a number of weeks prior to the alleged offences and pleaded guilty to possession of the same stolen vehicle the day following the events in question, the existence of his fingerprint on the inside of the car. As to the existence of his DNA on the complainant's underwear, he testified that he had had unprotected sex with his girlfriend in the back seat of the vehicle on many occasions. He denied being in the car at the time the alleged offence occurred.

His counsel contended that his client's DNA was found on the complainant's underwear because of "transference". Underlying this notion of transference is the idea that when any two objects come into contact, there is material transferred from one object to the other, mutually both ways. In this case, counsel contended that his client's DNA was transferred to T.L.'s underwear by way of secondary transference. Secondary transference could account for how his client's DNA might be found on an object with which he never actually came into contact. If his client was the source of the DNA on one object and that object came into contact with another object, then his client's DNA could have transferred to the second object without his client ever coming into direct contact with that object.

2. Regarding A.D.:

Counsel for the defendant A.D. argued that the sexual acts with T.L. were entirely consensual. His client testified that he had approached the complainant, (who was working as a prostitute that night) for sex and that the complainant had agreed to perform certain sexual acts for $40.00. He testified that he had sex with the complainant in the car (thus explaining the presence of his finger prints in the car and his DNA on T.L.'s neck area and on her jacket and in the condom retrieved at the scene) and paid her the $40.00 agreed upon, and then left the scene. Even if the court were to find that there was no consent, counsel submitted that his client had an honest, but mistaken belief as to her consent, which was reasonable in all the circumstances.

As to the subsequent robbery with violence, he testified that he and his friend R., who was with him that night, were not involved in any subsequent assault and robbery which may have occurred with respect to T.L., and had no knowledge of how the complainant suffered the injuries proven at court. He testified that R.O.S. was not with them that night.

Discussion

[40] The issues in this case are as follows:

1. Identity,
2. Credibility and,
3. Whether the elements of sexual assault were established.

Was R.O.S. Present That Evening and Did He Participate?

[41] R.O.S. testified that he was not present that night and his evidence in that regard was corroborated by A.D. In deciding this issue, since R.O.S. testified in his own defence, I have applied the test set out in R. v. W.(D), [1991] S.C.J. No. 26, i.e. If I believe the evidence of the accused, I must acquit; if I do not believe the testimony of the accused but I am left in a reasonable doubt by it, I must acquit; and, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[42] In this case, there is no direct evidence placing R.O.S. at the scene. T.L. was very clear that she was not able to identify R.O.S. as one of her attackers.

[43] The evidence that supports his presence at the scene is circumstantial in nature, namely, the fingerprint evidence on the car and DNA evidence on the complainant's underwear, both acknowledged belonging to R.O.S.

[44] R.O.S.'s fingerprints were found on the inside rear view mirror of the car in which T.L. says she was sexually assaulted, and R.O.S.'s male DNA profile from semen was found on the right side of the front panel and on the back left hip of the underwear worn by T.L. at the time of the alleged sexual assault.

[45] Given the fact that R.O.S. acknowledges that he was in possession of the vehicle for a number of weeks before the incident with T.L. and pleaded guilty to possession of the same stolen vehicle the day following the events in question, the existence of his fingerprint on the inside rear view mirror could well be expected as result of his regular use of the vehicle, and would therefore have no evidentiary value on the issue of whether he was present at the time T.L. was allegedly sexually assaulted and robbed.

[46] The fact that R.O.S.'s DNA was found on T.L.'s underwear is strong circumstantial evidence that R.O.S. was present during the alleged sexual assault. Counsel for R.O.S. contended that secondary transference is a reasonable explanation for the presence of his client's DNA on the complainant's underwear.

Secondary Transference

[47] Defence counsel argues that the DNA evidence which appears to implicate the accused ROS in this case, is the product of "secondary transference." The issue of "secondary transference" was raised in the cross-examination of the Crown expert, Mr. James Sloots, a forensic biologist employed by the Centre of Forensic Sciences. Mr. Sloots was qualified as an expert on consent, and after a voir dire, in the following areas:

a) the identification of bodily fluids, and

b) analysing, comparing and interpreting DNA profiles including statistical analysis of DNA profiles.

[48] Although no objection was taken to the witness's evidence with regard to secondary transference, in my view this area was not within the expertise of the witness. In any event, and if I am wrong in this conclusion, I intend to deal with this argument on the merits.

[49] The first question is: What is "secondary transference"? According to Mr. Sloots, transference is a process whereby DNA is transferred from one object to another object with which the first object has not had direct contact. In this case it is argued that the DNA found on the underwear of the complainant arrived there through a process of transference, to wit, that DNA in the semen of ROS was on the interior portion of the red Honda as a result of prior sexual activity in the automobile, and was transferred to the complainant's underwear, through contact with the DNA which had been deposited in the back seat of the car on a previous occasion, and not through sexual relations with the complainant.

[50] As a preliminary matter, I wish to begin with the question of the quantities of DNA located in the complainant's underwear, which, according to Mr. Sloots, can be a relevant issue in establishing transference.

[51] Mr. Sloots testified that if the DNA was present because of transference, one might reasonably expect to find only trace amounts. The defence argues that only "trace" amounts of DNA from R.O.S. were detected on the complainant's underwear. I wish to note immediately that there was no evidence of what constituted a trace amount. In any event, the argument on this point is spurious.

[52] R.O.S's DNA profile was taken from semen located on two stained areas of the complainant's underwear. Mr. Sloots testified that R.O.S. was the main contributor to the stains on both locations, although evidence of two other male contributors were detected in minor amounts. According to Mr. Sloots the underwear was subjected to "acid phosphatase testing" (human semen usually contains high levels of a substance called acid phosphatase). Having located two areas of high concentration of acid phosphatase on the underwear, Mr. Sloots subjected those areas to DNA testing. A small part of a larger stain, in the area of highest concentration, was cut out for DNA sampling in two separate locations on the underwear, one at the right side panel and one at the hip. Other areas of the underwear also showed signs of higher and lower concentrations of acid phosphatase but were not tested. The samples selected were sufficient to identify the DNA as belonging to ROS.

[53] It is clear from Mr. Sloot's evidence that the entire undergarment was not subject to DNA testing. Only the areas of highest concentration of a larger stain was sampled. These facts do not rule out the possibility that other areas of the underwear contained additional DNA, nor do they confirm that only the areas selected contained the DNA of the accused. The defence did not seek to have further testing conducted of other portions of the garment. In the result, the defence submission that only trace amounts were located is without foundation.

[54] I turn then to a further analysis of the question of whether transference may be found to have occurred in this case.

[55] Mr. Sloots testified that the likelihood of secondary transference occurring depended upon certain conditions being met. He described these conditions as follows:

1. The DNA material must be deposited on a non-absorbent, smooth object (the "depositing object");
2. The receiving object must be absorbent;
3. There must be friction between the depositing object and the receiving object;
4. The deposited DNA material must be moist.

[56] In cross examination, counsel for R.O.S. told Mr. Sloots that it was the defence theory that his client's DNA had been transferred to the complainant's underwear from semen which had been deposited in the car when his client had sexual relations in that car on earlier occasions. In cross-examination, defence counsel posed the following hypothetical question, and asked for Mr. Sloot's opinion as to whether it would be possible for DNA to have been transferred to the complainant's underwear in such circumstances:

• That his client had sex in the backseat of the car during a period beginning 13 days before, and as recent as three hours prior to the complainant having sex in the same backseat (This aspect of the scenario was not borne out in the evidence of the accused)
• That between those discrete time periods, 13 days and three hours, that his client ejaculated in the backseat of the car (again the "three hours" was not borne out in the evidence)
• That the complainant had intercourse with at least two men over a period of between 15-25 minutes in the backseat of the same vehicle,
• That during that time the complainant had her pants and underwear pulled down towards her knees,
• That the complainant had sex with these two men in different positions while in the backseat,
• That at some point it is possible that her underwear came into contact with a dried semen stain deposited by his client on the backseat,
• That there was friction between the complainant's underwear and a surface of the car where his client's semen had been deposited.

[57] According to Mr. Sloots the possibility of secondary transference would depend upon the factors or conditions set out above being met. In relation to those conditions, I find the following:

1. Was there a non-absorbent, smooth surface onto which the DNA could have been deposited (the "depositing object") on an earlier occasion and then transferred to the complainant's underwear (the "receiving object")?

[58] The backseat of the red Honda (the receiving object) is the locus where ROS's DNA could have been deposited on a previous occasion. A photograph of the backseat was entered into the evidence as an exhibit, (albeit after Mr. Sloots testified). That photograph clearly establishes that the back seat was upholstered in a cloth fabric. Cloth is absorbent. According to Mr. Sloots, any transference from a fabric seat would be considerably more unlikely than would be the case if the seat had been upholstered in vinyl or leather, because semen deposited on a cloth seat would spread out, dry and be absorbed into the fabric, and thereby not be in a condition amenable to transference.

[59] From my review of the photograph, it would appear that the back of the front seat of the Honda was upholstered in a vinyl or plastic. It was argued by the defence that semen might have been deposited on the vinyl or plastic covering of the back of the front seat surface (the receiving object) during a prior sexual encounter and then transferred to the complainant's underwear during sex. However I find it improbable that the DNA material would have been deposited on the covering of the back of the front seat, which is a vertical surface. More particularly, I find it improbable that any DNA would have been deposited in sufficient quantities such that it could be transferred by contact with two specific surfaces of the complainant's underwear, thereby resulting in identifiable deposits on the underwear.

[60] It was also argued that the DNA material could have been deposited on a seat belt or seat buckle, and then transferred to the complainant's underwear. I find this scenario equally improbable.

2. Was the receiving object – the underwear – made from an absorbent fabric?

[61] This question must be answered in the negative. The complainant's underwear was described as being made from a "plastic-like" material (92 per cent polyester lycra, 8 per cent spandex fabric), which according to Mr. Sloots, does not retain DNA well. He noted transference is not likely from a cloth seat to a plastic-like fabric (polyester).

[62] The defence argues that the sample was taken from the edges of the underwear, and that the underwear was trimmed with lace, which may have been more absorbent than the rest of the underwear. However it was not established in the evidence that the lace was made of anything other than a polyester (Lycra), non-absorbent, material, which is not susceptible to transference. This argument depends on pure speculation, and I reject it.

3. Would the DNA material purportedly deposited on the earlier occasion still be moist at the time of the incident?

[63] R.O.S. testified that he was unsure as to the date of his last sexual encounter with his girlfriend in the backseat of the car. He was clear that he had not had sex with his girlfriend in the backseat of the car within the two days prior to the alleged sexual assault on the complainant. (Hence the contradiction with the hypothetical). Given the time lapse between the last sexual activity involving R.O.S. and his girlfriend, and the sexual activity with T.L., and given that the hypothetical describes the semen deposited as "dry", the defence did not argue that the semen R.O.S. purportedly deposited in the backseat of the car during those earlier encounters remained in a moist or liquid state to the date in question, September 20, 2009.

4. Was there Friction between the depositing object and the receiving object?

[64] T.L. agreed that her underwear was pulled down to her knees as were her pants. I accept that, from her description of the sexual activity, her underwear may well have rubbed against the backseat, and that friction would increase the likelihood of transference, especially if the application of friction was coupled with moisture. However,

• as I have indicated, the defence does not argue that the semen purportedly deposited on the earlier occasion would have remained moist given the time lapse;
• As I have already indicated that the backseat fabric was cloth. Cloth fabric is absorbent, and therefore is not conducive to transference in any event, according to Mr. Sloots.
• Finally, given that the prior deposit of DNA from semen would be dry given the time frame during which prior sexual activity was said to have taken place with T.S., the moisture, if any, could only have resulted from the sexual activity with T.L..

[65] Thus, in my view, the proposition that there could have been sufficient bodily fluid on the underwear caused from the lubricant from a condom or from other secretions during sex, such that dried semen on the cloth backseat upholstery could have become so sufficiently moisturized as to result in at least two transferred and readily identifiable deposits of R.O.S.'s DNA on the complainant's underwear, is so speculative as to be unworthy of serious consideration.

[66] Thus, there was no evidence of a hard/smooth surface on which the DNA was deposited, there was no evidence of an absorbent fabric to which the DNA was transferred, nor was there sufficient friction and moisture which might account for the DNA deposits found on the underwear in the location and in the concentrations identified by the tests performed.

[67] It is clear that the evidence in this case falls woefully short of establishing conditions conducive to a secondary transference of DNA onto the underwear. The expert was not presented with an accurate hypothetical, nor was he in possession of all the evidence, nor did he express an opinion about whether transference was a reasonable possibility in this case.

[68] Before I leave this issue, I wish to comment on the weight to be given to the expert testimony. As I have noted, in my view, the questions relating to transference fell outside of the scope of expertise established by the expert. In addition the expert did not have the evidence of the photograph establishing the nature of the materials on the interior of the back of the Honda. This evidence would be necessary for the expert to comment on the probability of transference. It is notable that the hypothetical situation posed by the defence did not advert to the actual nature of any materials in the automobile. Knowing the precise nature of those materials was critical to answering the questions about the probability of transference. Given these circumstances, I do not give any weight to the testimony of the expert regarding the possibilities for transference in this case. The defence argument that RSO's DNA was on the underwear of the complainant because his DNA deposited during a prior sexual encounter transferred there, is rejected in its entirety.

Credibility Assessment – R.O.S.

[69] R.O.S. testified that he was not present. For the following reasons, I did not accept his evidence nor did his evidence raise a reasonable doubt:

• R.O.S. testified that he had unprotected sex in the back seat of the stolen car on many occasions. I found his explanation as to how his DNA from semen was deposited regularly on the backseat of the stolen vehicle unbelievable, especially his description of his typical use of a condom. He testified that he used a condom, but would remove the condom if his girlfriend was performing oral sex and sometimes, just before he ejaculated, he would remove the condom during vaginal sex. One is left to wonder why he ever used a condom at all. Condoms are typically designed to prevent pregnancy and avoid sexually transmitted diseases. His condom explanation left the impression he first wanted to appear to be acting responsibly by using condoms but realized too late that he needed to explain his DNA on the underwear and was forced to claim he took it off at the crucial moment ─ which of course made no sense at all.

• R.O.S. testified that he found an abandoned car approximately two weeks before this incident (notwithstanding that he plead guilty to knowingly possessing stolen property) and that as a result of some masterstroke of good fortune he was able to open the car and start the car with a master key he had obtained months before when he traded with a youth known only as J.R. who gave him the master key in exchange for drugs. I found this evidence manifestly incredible.

• Although there is no burden of proof on a defendant in a criminal proceeding, nevertheless, there was no evidence called to even corroborate the existence of a person by the name of "T.S.". When questioned by the Crown, R.O.S. was unable to provide her phone number, her address, her parents' names or any other piece of identifying evidence that might have allowed the police to track down this witness and verify his claim of regularly having unprotected sex with her in the back seat of the vehicle.

• Although not required to do so, he did not call any member of his family who would presumably be in a position to corroborate his evidence that he was home the night of September 19/20, 2009. For the same reasons he testified that he recalled what he was doing that night, his parents would have the same reason for recalling the events of that evening. He testified he recalled in great detail what he was doing that night because he was arrested the next day for the first time.

• I found his evidence that he loaned the stolen car for the first time to his friend A.D. on a Saturday night, a night during which he was not working and proceeded to go to bed at 11 p.m. not worthy of belief. He stated he awoke the next morning and drove the car for a period of time and was involved in a rear end collision. Given his regular use of the stolen vehicle, it is too much of a stretch to imagine he would have handed it off to friends on a Saturday night and have gone to bed at 11:00 pm.

• Most telling was the fact that R.O.S.'s DNA from semen was found on two distinct locations on T.L.'s underwear as a major contributor, one on the right side of the front panel and another on the back left hip of the underwear. His attempt to explain the presence of his DNA by "secondary transference" was implausible in the extreme. Even if his dried semen had been deposited on the cloth fabric of the back seat of the vehicle, the possibility, as argued by counsel for R.O.S, of it being transferred to polyester underwear in quantities sufficient to be identified as a major contributor on two distinct and different sides of the underwear, but only in trace amounts, is not an inference that could reasonably be drawn on the proven facts of this case: R. v. Arcuri [2001] 2 S.C.R. 828, 2001 SCC 54.

• Although A.D.'s evidence corroborated the evidence of R.O.S. as to his absence from the scene that evening, I did not find A.D.'s evidence credible for reasons discussed in the following portion of this judgment and as such, I was not able to find that his evidence corroborated the evidence of R.O.S. in any material way.

[70] On the basis of the foregoing, I do not accept the evidence of R.O.S. as credible and further, it does not raise a reasonable doubt. Finally, I have concluded that no reasonable doubt arises as to his involvement in the events of the date in question on the basis of all of the trial evidence that I do accept (see assessment of T.L.' credibility, below). I find as a fact that on the direct and circumstantial evidence, R.O.S. was present and participated in the entire encounter with T.L. during which she was assaulted and robbed beyond a reasonable doubt.

Was A.D. Present at the Time of Robbery?

Credibility Assessment – A.D.

[71] As A.D. testified in his own defence, I have applied the test enunciated in R. v. W.(D.) to this evidence as well. A.D. testified that he was with his friend R. when he encountered T.L. and that he and R. paid for sex with T.L., then left. At the point he and T.L. parted company, he testified she was unharmed, and he gave evidence he knew nothing about how T.L. came to be assaulted and robbed that evening.

[72] I did not believe A.D. when he testified that he was not present at the back of the church when T.L. was assaulted and robbed nor that he was not involved in the robbery. I say this for a number of reasons:

• A.D. testified that he was with a fellow named "R." on the night he solicited sex from T.L.. He told the court that he did not know R. last name nor where R. lived nor any other identifying details thus effectively frustrating any effort by the police to locate R. to verify the story. While he is not required to do so, he did not call R. to corroborate this evidence.

• I did not believe his evidence when he told the court that R.O.S. was not with him that evening.

• I found the testimony of T.L. highly credible in her description of why she took the time to remember part of the vehicle license plate number. If A.D. had left her unharmed she would have had no reason to memorize and repeat the three numerals of the plate all the way to the police station. She testified that she gave the police the last three digits of the red Honda's licence plate as soon as she arrived at the police station which was corroborated by police evidence. She told the police that she had been attacked by four men who were riding in that vehicle. She testified that she memorized the last three digits of the licence plate number because she was afraid that she would be seriously injured and wanted to be able to help the police to identify her assailants. It is noteworthy that 971 are the last three digits of the licence plate of the stolen red Honda in which R.O.S. was arrested within hours of the alleged sexual assault on T.L.. This is also the same vehicle in which A.D. admits to having sex with the complainant. Therefore, her evidence as to the last three digits of the red Honda was correct. Her evidence about noting the last three digits and repeating them to herself like a mantra until she reached the police station and then telling the police to write them down so that the police might identity of her assailants has a strong ring of truth. It would make no sense that she had left A.D. and R. on good terms that evening, as was suggested by A.D., and then was assaulted by someone else and subsequently falsely reported to the police that she was attacked and robbed by individuals riding in a red Honda with licence plate ending in '971', thereby shielding the real perpetrators of the robbery.

• I am satisfied that the red Honda was the vehicle driven behind the church. As A.D. admits to having been an occupant in the vehicle that evening and to have left in that vehicle, without harming T.L. in any way, I do not accept his evidence and it does not raise a reasonable doubt.

[73] Finally, I have concluded that no reasonable doubt arises as to his involvement in the events of the date in question on the basis of all of the trial evidence that I do accept (see assessment of T.L.' credibility, below). I find as a fact that on the direct and circumstantial evidence, he participated in the entire encounter with T.L., during which she was assaulted and robbed behind the church, beyond a reasonable doubt.

T.L.

[74] I found T.L.' evidence to be logical, consistent, detailed and plausible in most respects. While it may seem unlikely that this was her first venture into prostitution, one could well imagine why she may have been inclined to polish her image slightly out of a sense of embarrassment and concern for her family. In any event, I can believe all, part or none of a witness' testimony. I am prepared to accept most of her evidence because it flowed so naturally, without hesitation, and held together with compelling detail, consistency, logic and plausibility under stiff cross-examination. By her poignant and detailed account of what happened to her in and near the red Honda motor vehicle it was evident that she was palpably hurt, shaken and profoundly disturbed by the beating and robbery visited on her by the occupants of the vehicle and proceeded to travel on foot some distance to describe the vehicle and report this attack to police in order to be able to help the police identify her assailants. She testified the individuals who had sex with her in the red Honda were the same ones who attacked and robbed her. I accept that she saw all four young men run towards the vehicle just before she was attacked. I am satisfied that she had a chance to see who was assaulting her in-between blows, both inside the vehicle and after she was dragged out of the vehicle, even though she covered her head at times. As she said in evidence in answer to the question: "And when you got out of the car and you said they were hitting you, how many of them were hitting you?" And she answered: "I felt four hands and I saw all four of them and I felt a blow here and here" (indicating both sides of the temple and both sides of the jaw area). I accept her evidence that she had sex with four young men and she was attacked and robbed by the same four young men who left in the red Honda.

[75] On the basis of this evidence and the logical inference which flows from the evidence that I accept, no reasonable doubt arises as to the guilt of either defendant on the robbery charge, count 3.

The Issue of Consent and Whether Consent Was Vitiated by Fraud, Deceit or Subsequent Conduct

[76] The first question to be addressed is whether the sexual contact was consensual, and if there was no consent, is the defence of honest but mistaken belief in consent available to the young persons?

[77] Secondly, if I find that the sexual acts were consented to or that there was an honest but mistaken belief by the defendants as to the consent by T.L., the question then arises as to whether the consensual or ostensibly consensual sexual acts in this case become sexual assaults by reason of the "consent" having been vitiated by fraud or deceit or by subsequent acts of assault and theft visited on the complainant, having found that both defendants participated in the robbery of the complainant beyond a reasonable doubt.

[78] A.D. testified that any sexual contact between himself and T.L. was consensual (a position to be adopted by R.O.S. should the court find as a fact that he was present that evening).

[79] The Crown argued that, although T.L. may have initially consented to exchanging sex for money with A.D., she changed her mind once she discovered that she would be expected to have sex with three other men. She referred to, R. v. Ewaschuk, [1999] 1 S.C.R. 330, as a case that sets out the actus resus of the offence of sexual assault, namely, the crown must prove; 1. There was touching, 2. The sexual nature of the contact, and 3. The absence of consent. In this case the first two prongs of the test are conceded. She argued that the absence of consent is purely subjective and must be determined by the court in light of the complainant's testimony as to her subjective state of mind towards the touching at the time the touching occurred. (R. v. Ewaschuk, supra). On the facts of this case, she argued that the court should find that there was no consent by T.L. to the sexual touching.

[80] As well, she referred to section 265(3) of the Criminal Code which defines a series of conditions under which the law will deem an absence of consent in a situation in which sexual assault is alleged, "notwithstanding the complainant's ostensible consent or participation." She noted that consent under fear, extortion or duress, fraud or exercise of authority vitiates any apparent consent. She also referred to section 265(4) of the Code which defines and limits the situations in which the defence of honest but mistaken belief in consent is available to a defendant.

[81] The operative sections read as follows:

265(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

[82] On the issue of whether T.L. was consenting, the Crown referred to multiple places in her evidence where she indicated that she was no longer consenting when she saw three more men than the one she agreed to have sex with but was afraid so she continued with the hope that if she had sex with these men, "they would let her go." The Crown referred to the following passage on the issue of consent:

Question: So what is it—my question was, did you change your mind about consenting to the sexual intercourse with the first person?

T.L.: When I was walking, when I crossed the street, then I changed my mind,

Question: And did you communicate that to the first person?

T.L.: I do not think that I said anything else. I think I just continue walking.

Question: When you say else, what other things did you say.

T.L.: All I know is that when I looked at those three other people I told him, "I see I am just aware of this that you are not alone".

Question: And why didn't you tell him that you changed your mind about consenting?

T.L.: It was night time, the street was dark, and I was afraid.

Question: What were you afraid of?

T.L.: This was the first time-a first time and I was afraid.

Question: And what were you afraid of?

T.L.: I was afraid because there were more people there in front. I was carrying my things, my bag and my things. But I couldn't go back, I couldn't move back.

Question: Why couldn't you move back?

T.L.: Because I had-I was afraid, I had a bad feeling by then.

Question: Did you consent to having sexual activity with the other three people?

T.L.: No.

Question: Did they ever ask you whether you consented or not?

T.L.: No.

Question: Did you ever tell them whether you consented?

T.L.: No.

Question: And why did you not tell them you did not consent?

T.L.: Because thinking-within me I was thinking if I do some more, perhaps they'll let me go.

Question: Why did you think they would not let you go?

T.L.: I do not know, I don't know how to tell you, but I had this feeling that-I had a feeling because it seems to me that at one moment I told him that I wanted to leave.

[83] The Crown never pursued this last comment as to her telling them that she wanted to leave, and I am satisfied that up until she locked the car at the back of the church she never, by word or deed, indicate to anyone that she wanted to leave.

[84] Counsel for the young people referred to the evidence as a whole and asked the court to find that she consented to the sexual activity. In the alternative, counsel urged the court to find that their clients had an honest but mistaken belief in her consent and that there were reasonable grounds for their clients to have such a belief. They pointed to the following evidence in support of that conclusion:

(a) The complainant admits to engaging in prostitution in the early morning hours of September 20, 2009.

(b) She met up with A.D. and agreed to exchange sex for money,

(c) Although A.D. never indicated that there were three other men, she never by word or action indicated an unwillingness to engage in sex for money with any of the four young men who sought her services that evening. She never asked to leave and she never asked anyone to stop.

(d) She admitted to asking for money before engaging in sex with the young men, at least with respect to the first three individuals. She accepted $30 from the first two men and agreed with counsel that $60 was twice as much as $30. The third young man told her that his boss, who was the fourth man, would pay her for his services and she proceeded to engage in sexual activity with that young man presumably because she was prepared to wait for payment.

(e) She pulled down her own clothing and assumed the positions requested by her young clients including touching, kissing, oral sex and vaginal sex.

(f) She admitted that no one threatened her and that she apparently willingly performed the sexual acts requested by the young men.

(g) No one locked the door of the car and no one harmed her until, she alleged, she was robbed behind the church.

[85] I had the opportunity of seeing the complainant in the witness box. I am satisfied that she was sincerely traumatized by the events of that evening. She indicated that this was her first experience engaging in prostitution. Whether this was her first experience or not, I am satisfied that she was not an experienced prostitute. I find she found herself in a difficult position and decided to continue in the hope that everything would work out. She got into the car, collected the money and performed the acts requested by these four young men.

[86] In the circumstances of this case, although I am prepared to accept that she may have had grave misgivings and was in fact not consenting; her words and actions were such that a reasonable person might have an honest but mistaken belief as to her consent. She got into the car, asked for the money agreed upon and then apparently willingly complied with the sexual requests of these young men. I do not agree with the Crown's submission that the young men had any obligation to ask her if she was consenting to sexual contact when they entered the car. It was reasonable for them to assume that she was consenting when she met them with a request for the $30 fee before engaging in sexual activity and never by word or action indicated that she was not consenting to continue. Surely it is not the law that a client of a prostitute has to continually ask whether the acts engaged in are consensual in the absence of any contrary indication particularly when payment was requested and complied with at the outset. The defence of mistake may stem from any of the evidence before the court and need not arise from the evidence called by the accused. Para 44 of R. v. Ewaschuk, supra deals with this issue and it reads as follows:

The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R.v.Robertson, [1987] 1S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown's case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.

[87] Further, in my opinion the facts of this case do not support the proposition that the ostensible consent of T.L. to the sexual acts were vitiated by fraud or dishonesty.

[88] The Crown contends that when A.D. engaged the services of T.L. he did not advise her that she would be expected to engage in sexual activity with three others and that by failing to do so he obtained her consent by fraud and this fraud increased her risk of serious harm in the circumstances. The Crown also argued that the subsequent robbery, where the money was taken from T.L., vitiated the consent as she believed that she was going to be paid for the sexual acts and that later she was beaten and robbed of her property including the monies she received for performing the sexual acts.

[89] With respect to the first ground, i.e. that the consent was vitiated because there was fraud (dishonesty) as to the number of persons she was expected to have sex with, I am not satisfied that the fact there were more clients than originally bargained for would be a reason for the court to vitiate the consent, because on this fact alone, there is no necessary deprivation or risk of serious harm. In this case, each young man entered the car and money was discussed and at least on the first two occasions money was exchanged and on the third occasion T.L. ostensibly agreed to defer payment until the fourth man entered the car. Even if the third and fourth obtained sexual services fraudulently, it is just as likely that they were the two individuals that were never arrested on these charges and I have no basis upon which I can be satisfied that that the two defendants before the court did not pay for what they received. I am also not satisfied that a fraud of this nature, if proven, i.e. obtaining sexual services with no intention of payment, would on its own, without finding something else, be sufficient to vitiate the consent and render the actions criminal. The caselaw in this regard is clear: in order to vitiate consent by reason of fraud, I must find dishonesty, which gives rise to a significant risk of serious bodily harm.

[90] The fact that T.L. was subsequently beaten and robbed does not necessarily vitiate the consent by fraud, (i.e. dishonesty coupled with deprivation--violence and theft of her property) unless I had some basis for believing that the defendants had planned to pay her for sexual acts and then rob her of her property including those very same payments. On the evidence I accept, there is no basis for such a conclusion. I find that the robbery could have just as likely resulted from some impromptu, drug-fueled aggression joined in by the other three youths, an incident which began when the fourth youth became enraged when T.L. attempted to lock him out of the car.

[91] I have considered the leading cases in this area including R. v. Cuerrier [1988] 2 S.C.R. 371, and R. v. Hutchinson 2014 SCC 19, [2014] S.C.J. No. 19 and have assessed each of the defendants actions (as noted above) and found that on an objective basis I cannot conclude that there is a reasonable basis to believe that either had engaged the sexual services of T.L. with a view to - either alone, or while accompanied by one or more of the others - attacking her and stealing the money they had paid her (or rob her of her other property). Consequently, having reviewed all of the evidence which I have accepted as proven, I am not satisfied beyond a reasonable doubt that either defendant had formed the intention before the sexual activity took place of attacking the complainant and robbing her of her possessions once the sexual activity was concluded (i.e. that they obtained her ostensible consent through fraud coupled with risk of deprivation that was serious in nature).

[92] I am satisfied that the complainant may have had real but unexpressed misgivings about sexual activity with the young men who appeared at the vehicle. However, on her own evidence, by her acts and gestures, she continued to appear willing to participate in sexual acts and receive money, and it cannot be said that there were any outward signs of a lack of consent. Consequently, from the point of view of the defendants, there could have been an honest if mistaken belief in consent.

[93] However, had I been satisfied that there was evidence of premeditation as discussed above, I would have concluded that the purported belief as to consent was not reasonable in the circumstances and could not have been honestly but mistakenly held by the defendants. I would have found no honest but mistaken belief in consent because there would be no air of reality in such circumstances to such a defence. How could the court accept that there was any air of reality to the defendants' claim that they honestly but mistakenly believed that T.L. was consenting to the sexual activity, if the defendants knew that they were intending to assault and rob her once the sexual activity concluded? (See section 265 subsections 3, 4 and reference to the absence of a reasonable belief in consent).

[94] As I do not find beyond a reasonable doubt that the charges of sexual assault have been made out for the reasons set out herein, it follows that the charges of gang sexual assault cannot be proven beyond a reasonable doubt as well.

Conclusion

[95] In all the circumstances, I find that the defendants before the court are not guilty of the offences of sexual assault and gang sexual assault (Counts 1, 2, 4, and 5), but guilty of robbery (Count 3).

Released: May 30, 2014

Signed: Justice Penny J. Jones