WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) 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 Information

Ontario Court of Justice

Date: 2017-03-30

Court File No.: Orangeville 2016 160584

Between:

Her Majesty the Queen

— and —

Davide Scinocco

Before: Justice G.P. Renwick

Heard on: 30 March 2017

Reasons for Judgment released on: 30 March 2017

Counsel:

• L. Marcone — counsel for the Crown
• J. Dennis — for the defendant Davide Scinocco

Judgment

RENWICK J.: (orally)

Introduction

[1] Davide Scinocco is charged with one count of committing a sexual assault against the complainant.

[2] The prosecution's theory was that on a particular evening the defendant, who was the boyfriend of the complainant's friend, made several attempts to touch the complainant, after she had consumed alcohol to excess, and she made it known to the defendant in no uncertain terms that his advances were unwanted, and after several aborted attempts, the defendant came into the bedroom where the complainant slept and she awoke to find something touching and entering her vagina, and when she resisted, and told him to get off of her, she observed the defendant in a partially nude state, at which point the assault ended.

[3] The prosecutor lead evidence from the complainant, another witness, and filed as exhibits a report from an analysis of a vaginal swab of the complainant and an agreed statement of facts explaining the Centre of Forensic Sciences report. The Defendant called no evidence in this case.

[4] There are two issues in this matter:

i. Is the prosecution limited to proving this offence on the basis of proof of the allegation of a penetration of the complainant's vagina by the defendant, or could the offence be proven by another non-consensual touching of the complainant by the defendant for a sexual purpose; and

ii. Has the prosecutor proven a sexual assault committed by the defendant beyond a reasonable doubt.

Analysis

The Single Count of Sexual Assault

[5] The defendant challenges the prosecutor's ability to prove the single allegation of sexual assault on the basis of any of the earlier examples of unwanted touching of the complainant, short of the vaginal penetration allegation. According to the defendant, if I am not satisfied beyond a reasonable doubt that there was a penetration of the complainant's vagina by the defendant, I must acquit the defendant of this offence.

[6] Through counsel, the defendant contends that the single count of sexual assault was always understood as between the prosecution and the defence to relate to the penetration of the complainant's vagina by the defendant's penis, or finger, or something else. Mr. Dennis advised that he had sought particulars from the prosecution on an earlier court appearance.

[7] Ms. Marcone, the prosecutor, did not deny that particulars had been sought, nor that there had been a discussion with the defence about the substance of the single count of sexual assault.

[8] Although I am satisfied that counsel for the defendant had sought particulars, I have no evidence to make a finding that there was an agreement as between the prosecution and the defendant that the prosecution would limit its case to the proof of the vaginal penetration allegation.

[9] I note that there were no motions brought at the start of this trial pursuant to section 587 of the Criminal Code for particulars, section 590(2) of the Code for the division of the single count, nor section 601 of the Code to quash the information or amend the count.

[10] It is trite law that every count must be factually sufficient and legally sufficient to permit a defendant the opportunity to defend itself. As well, every count should involve a single factual situation: see R. v. Sault Ste. Marie (City), [1978] S.C.J. No. 59.

[11] However, based on the focus of the cross-examination of the complainant, the submissions of the defendant, and the fact that no evidence was called by the defendant, I find that the defendant always understood that the gravamen of this allegation of sexual assault was the unwanted penetration of the complainant's vagina by the defendant (either digitally, or with his penis, or some other object or body part).

[12] I accept the defendant's submission that if the prosecution is permitted to prove a single count of sexual assault on the basis of some lesser physical touching that occurred that evening, the defendant will have been unfairly and irreparably prejudiced in his defence. Accordingly, if I am not satisfied beyond a reasonable doubt that the penetration allegation is proven, I must dismiss the charge of sexual assault against the defendant.

Has the Crown Proven the Offence

[13] Mr. Dennis submits that there is a material inconsistency between what the complainant told the first officer she spoke with and the subsequent statement she made and her testimony in court.

[14] As was revealed during the complainant's cross-examination, the officer who first spoke with the complainant about this matter wrote in the general occurrence report first filed in this investigation, the complainant "did not believe" she had been penetrated.

[15] Although there was no evidence on what basis the officer wrote those words, the complainant testified that she recalled telling the officer that. She continued in her cross-examination to explain that for her the term "penetration" meant more than entering and involved the actual back and forth movement of something inside her vagina. The complainant was adamant she was always clear in discussing the incident that there was vaginal touching by the defendant although she maintained that she could not determine whether it had been the defendant's penis, finger, or something else. The complainant testified that Mr. Dennis was "twisting" her words by focussing on her interpretation of the word penetration.

[16] I am prepared to accept that the complainant initially told the police that she was uncertain whether or not she had been vaginally penetrated by the defendant. Nonetheless, I am satisfied that this part of her evidence did not detract from the overall assessment of her credibility or accuracy.

[17] Based upon all of the evidence, I am satisfied beyond a reasonable doubt that the defendant entered the bedroom where the complainant slept on 23 April 2016 and touched her vagina for a sexual purpose, without her consent.

[18] I accept the complainant's evidence that the defendant had his forearm on her while she awoke and he had used something or some part of his body to move her underwear and touch her vagina and that he began to penetrate her vagina when she awoke and fought him off.

[19] I am prepared to accept the complainant's evidence without hesitation for the following reasons:

i. The complainant was consistent in her evidence. At no point was she shaken in her version of events during cross-examination;

ii. The complainant's evidence was given in a straightforward, uncomplicated, unadorned, unembellished manner;

iii. The complainant agreed with propositions that cast her in a negative light. She admitted that she had always disliked the defendant and the complainant was candid that she was heavily intoxicated that night;

iv. The complainant did not try to diminish the defendant during her testimony, and actually portrayed the defendant in a sympathetic light when she testified that he had offered to heat up her food in the microwave, earlier in the evening; and

v. At no point did the complainant try to guess to improve her evidence.

[20] I agree with the defendant that the CFS report offered no corroboration of the allegation and accordingly, exhibits one and two formed no part in my decision-making process.

[21] Accordingly, I find Davide Scinocco guilty of the offence of sexual assault.

Released: 30 March 2017

Justice G. Paul Renwick