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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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: November 27, 2017

Between:

Her Majesty the Queen

— and —

Wyatt Kennedy

Before: Justice A.L. Guay

Heard on: June 6, July 4, 18, August 1, 8, 29, 2017

Reasons for Judgment released: November 27, 2017

Counsel:

• Brad Allison — counsel for the defendant Wyatt Kennedy
• David Beaton — counsel for the Crown

Reasons for Judgment

Guay J.:

[1] The accused, Wyatt Kennedy, was charged with sexually assaulting MW on April 3, 2015, contrary to section 271 of the Criminal Code of Canada. He has pleaded not guilty to this charge. At trial, his counsel raised two issues, including identity and lack of continuity of the forensic evidence obtained from the sexual assault unit of Health Sciences North Hospital in Sudbury.

Background

[2] On April 2, 2015, the complainant attended a girl's night out party at the home of her friend, BC, in Little Current, Ontario. At some time during the evening, her brother, KC, arrived home with a few of his friends and acquaintances, among whom were the accused, Wyatt Kennedy, and his best friend, MC. They had been consuming alcohol. So too had the girls even though they were not legally permitted to do so. The guys soon joined the girls in the home's hot tub, all being appropriately dressed for the occasion. Towards the end of the evening, the young people retired to the basement recreation room where they watched a movie.

[3] Among the first of the young persons present to retire for the night was MW. She indicated that she had gone up to sleep in one of the two beds in KC's room around 3:00 a.m. She testified that she had played with one of the Apps on her cell phone for about 20 minutes before falling asleep. She had changed into a top with long sleeves, pyjama shorts, a bra and panties. She related how she had slept in KC's room before and therefore thought nothing of doing so that evening, especially since the beds in BC's room were to be occupied by other girls who had been at the party.

[4] According to the evidence, KC was the next person to come upstairs to sleep in his bedroom. When both he and earlier, MW, went to bed, there were no other persons in the room. The next two persons to enter KC's bedroom were KC's friend, MC, and Wyatt Kennedy. This said, I note that MC was not absolutely certain that Wyatt Kennedy had come into KC's bedroom as he was in the process of falling asleep. I do, however, accept MC's evidence that both he and Wyatt Kennedy had come upstairs to the bedroom area around 4:00 a.m. MC testified that he fell asleep within a few minutes of entering KC's bedroom and heard the door to the bedroom open when he was drifting off to sleep. In cross-examination, he agreed with the inference put to him that it was Wyatt Kennedy who had come into the bedroom at that time.

[5] Later that night, MW awoke to what she described as excruciating pain to her vagina, finding a male person straddling her, with his penis inside her. Her reaction can best be described as one of panic and confusion. Most amazingly, because it was dark in the room and because she kept her eyes closed during this episode, MW would not be able to identify the perpetrator of the sexual assault on her. As she attempted to extricate herself from the situation while everyone else slept, she managed to get on her shorts and flee to one of the occupied beds in BC's room. There she was able to squeeze into and hide herself in one of the occupied beds, thereby avoiding further contact with the perpetrator.

[6] MW fell asleep after this and woke up around 7:00 a.m. At about 7:45 a.m., her mother came to pick her up. MW told her what had happened during the night. It is clear from the evidence that MW initially believed the perpetrator was MC. He was in the bedroom when she re-entered it in the morning following the assault. At that time, he had touched her leg suggestively when she attempted retrieve her cell phone which was plugged into an outlet on the side of the bed in which MC had been sleeping. MW would later learn from her mother on the way to the hospital for preparation of a sex assault kit that the perpetrator was Wyatt Kennedy and not MC. This information, of course, was hearsay and was based on discussions which had taken place between others present at the C. home that morning or known to the complainant. It was clear that while MW had been able to observe the male person who had assaulted her from the back while he was in the washroom, she was completely unable to identify him from her observations.

Forensic Testing

[7] OPP Constable Bonnie Coultis and her fellow officers soon investigated the assault on MW. They quickly came to the conclusion that there were three persons of interest namely: KC, MC and Wyatt Kennedy. Wyatt Kennedy was seen by the other two male occupants of KC's bedroom lying in the bed which had been occupied the previous night by MW.

[8] Constable Coultis sought and obtained consent to the taking of DNA samples from KC and MC. They quickly complied with her request and provided buccal swabs which were sent to the Centre for Forensic Sciences laboratory in Sault Ste. Marie, Ontario, by Constable Coultis and Detective Constable Patti Smith. At that time, Constable Coultis was not able to obtain a DNA sample from the accused. She would later obtain a sample of his DNA by means of a warrant which was issued on November 9, 2015. The accused's DNA sample was collected on November 16, 2015. The report received from the Centre for Forensic Sciences dated June 11, 2015 excluded KC and MC as the contributors of the male DNA located on the complainant's breast and lips. This forensic report revealed the presence of male DNA from an unidentified source on the complainant's body.

[9] In the second report from the Centre for Forensic Sciences dated December 4, 2015, the unidentified DNA obtained from amylase, likely saliva, on the complainant's breasts and lips was found to be that of Wyatt Kennedy. The report indicated that Wyatt Kennedy could not be excluded as a source of the DNA found on the complainant's body. As the forensic expert Michael Bissonnette from the Centre for Forensic Sciences indicated in his report, if a suspected source of DNA cannot be excluded, the Centre will generate a statistic to address the commonality or rarity of the suspect's DNA sample to arrive at a random mass probability figure. This figure addresses the probability that the individual whose DNA has been assessed would not be excluded as the source of the DNA profile. That figure in this case was 1 in 110 quadrillion according to Michael Bissonnette.

The Sex Assault Kit

[10] On or about the early afternoon of the day following the sexual assault, the complainant and her mother proceeded to Sudbury for the completion of a sexual assault kit to be used in identifying the person who had sexually assaulted her. The kit, completed before the afternoon was over, indicated a number of injuries to the complainant's body, including an internal injury which was most likely the source of the excruciating pain she felt when she was being sexually assaulted.

[11] The accused challenged the continuity of this evidence, alleging that it was not known how the kit and its materials got from the sexual assault unit of the hospital where it originated into the custody of Detective Constable Patti Smith in Gore Bay on Manitoulin Island. There was some suggestion that a third police officer had handled the kit, it not being known who he was and what he had done to it, thereby breaking the necessary chain of continuity in the care of the forensic evidence contained therein. In reviewing the evidence of Constable Coultis, however, one notes that when asked about how the sexual assault kit materials came into her possession at the Gore Bay detachment of the OPP, Constable Coultis indicated that it was indeed Detective Constable Smith herself who had picked up the kit from the hospital and brought it to the Island. Constable Coultis testified that Detective Constable Smith had been present in Sudbury on Block Training and had picked up the kit in a sealed box. Admitting that she was not at the hospital when the sexual assault kit was completed, Constable Coultis indicated that she was present when Detective Constable Smith brought it to the Gore Bay detachment where together they broke the seal of the box to access the kit's contents on April 13, 2015. Having done so, she stated, on April 13 or 14, 2015, both she and Detective Constable Smith sent certain of the samples contained therein to the Centre for Forensic Sciences, together with the DNA samples obtained from KC and MC, the two persons of interest who had earlier consented to provide those samples to her.

[12] In R v. Clancy, the court had to deal with the issue of continuity of forensic evidence, specifically the validity of a DNA sample taken from a complainant in 1988 following a sexual assault. A sample of the accused's DNA was later obtained in 2008 and it was sent to the Centre for Forensic Sciences for analysis and comparison with the victim's DNA sample from the original sexual assault kit. In the interim, the doctor who had examined the complainant had died and the nurse who helped to carry out the examination could not be located. The accused alleged that there was a possibility that the DNA evidence had been compromised and sought exclusion of it at trial on the basis that given the lack of solid evidence on how its integrity had been maintained, it now amounted to nothing more than hearsay.

[13] Citing Khan v. The Queen (1990) 77 (S.C.C.), the Court dealt with the admissibility issue by applying the two concepts of necessity and reliability. Having found that the necessity component of the analysis was made out by the death of the doctor who had taken the DNA sample from the complainant, the Court affirmed society's interest in getting at the truth and the need to avoid the requirement of meeting "the optimal test of contemporaneous cross-examination", rather than simply losing the value of the evidence. The Court said that the test to be applied was that "reasonable efforts had to be used to obtain the best evidence." (paras. 12-13).

[14] Turning to the issue of reliability, the Court found that "… Concerns raised relating to markings or erasures on charts, the handling of other exhibits, missing notes, discrepancies on reports, the conditions under which Sample 2 – B was stored, inserted form inclusions, the various improvements to protocol over the past two decades, and a host of other inquiries and speculations are without merit." (para. 18). The Court found that there was no evidence to support that there was a break in the chain of continuity and was satisfied beyond a reasonable doubt that the DNA sample had remained in its envelope from 1988 until it was tested in 2002 or 2003. There was, it maintained, no potential for contamination made out on the evidence. The defence concerns raised, the Court said, "were circumstantial, inferential, and invited me to engage in speculation". (para. 21)

[15] I agree with the principles set out in Clancy and with the application of those principles in this case. Notwithstanding the evidence I have noted and accepted with respect to Detective Constable Patti Smith's transportation of the sexual assault kit evidence to Gore Bay, I find that even if there was evidence that another person had temporarily handled the sexual assault kit and its contents prior to it coming into Detective Constable Smith's hands, this did not render that material inadmissible as being hearsay in nature. Applying a principled approach utilizing the principles of necessity and reliability to the forensic evidence, I do not find that there exist any real issues with respect to the continuity of that evidence in the present matter. I find that it is necessary to admit the forensic evidence in question and that there are more than the required indicia of necessity and reliability surrounding that evidence to warrant its admission into evidence. The evidence was necessary and was obtained in the usual course of business by personnel of the hospital's sexual assault unit. It would not be the usual practice or practical to call as witnesses all of the persons involved in its collection to testify about the routine practice used in obtaining such evidence. The fact that this evidence was identified as containing the DNA of the complainant and that it was treated in a secure manner first by hospital staff and then by the police officers desirous of obtaining it for evidentiary purposes constitute strong indicia of its reliability.

Conclusion

[16] Without the forensic evidence tendered by the Crown, the inability of the complainant in this case to identify her aggressor could have led to his acquittal. Added to this forensic evidence, of course, was the circumstantial evidence strongly pointing to the accused's guilt. He was placed not only in the room but also in the bed in which the complainant slept and was sexually assaulted. He had followed another young man into that bedroom and was found asleep in the bed in which the complainant slept the following morning. The two other persons of interest in the case voluntarily provided DNA evidence which, in the end, excluded them as the wrongdoers. Again, there was the remorse expressed by the accused to the complainant soon following his sexual assault of her. A person in the situation of the accused who previously had not had any or very little Internet communication with the complainant or done anything to harm her could reasonably be inferred from his remorse and self-deprecation to have been the person who assaulted her sexually.

[17] The evidence against the accused is overwhelming. I find that the Crown has proven the accused's guilt beyond a reasonable doubt. I therefore convict him of sexually assaulting the complainant contrary to s.271 of the Criminal Code of Canada.

Released: November 27, 2017

Justice A.L. Guay, Ontario Court of Justice