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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: July 17, 2018

Court File No.: Gore Bay 16-423

Between:

Her Majesty the Queen

— AND —

Brian Jordan Ense

and

Joseph Bernard Edward Ense

Before: Justice V. Christie

Heard on: February 1, 15 and June 26, 2018

Reasons for Judgment released on: July 17, 2018

Counsel

D. Beaton — counsel for the Crown

B. Middleton / S. Haner — counsel for the defendant, Brian Jordan Ense

B. Allison — counsel for the defendant, Joseph Bernard Edward Ense

Decision

CHRISTIE J.:

Charges

[1] Brian Jordan Ense (aka Jordan Ense) and Joseph Bernard Edward Ense were jointly charged as follows:

That Brian Jordan Ense on or about the 5th day of November in the year 2016 at the Village of M[...] First Nation in the said Region, did commit a sexual assault on B.R.N. contrary to section 271 of the Criminal Code; and

Further that Joseph Bernard Edward Ense on or about the 5th day of November in the year 2016 at the Village of M[...] First Nation in the said Region, did commit a sexual assault on B.R.N. contrary to section 271 of the Criminal Code.

[2] The Crown elected to proceed summarily.

[3] Following the completion of this trial, the court reserved judgment until July 17, 2018. While this decision was on reserve, the court was advised that Joseph Ense is now deceased and that the Crown intended to withdraw the charges against Joseph Ense. As a result, while this decision will refer to Joseph Ense throughout, the final result will only address Brian Jordan Ense, as the charges have now been withdrawn against Joseph Ense.

Facts

[4] Four witnesses were called by the Crown: Adam Roy, B.R.N., Detective Constable Ed Simon, and Ronald Lai. Two witnesses were called by the defence, specifically by Jordan Ense: A.C. and C.B.

[5] The evidence of B.R.N. will be summarized first in order to provide some context to the summaries of the other witnesses.

B.R.N.

[6] B.R.N. was sixteen years old in November 2016. At that time, she did not have a permanent address, rather she was "couch surfing" in various communities on Manitoulin Island, where she had friends and family members. She was not working or going to school in November 2016.

[7] In early November 2016, B.R.N. attended a house party at Marshall Migwans' residence in M[…]. She had never been to this residence before that day. She walked to the party alone and arrived around 2:00 p.m. or 3:00 p.m. In cross-examination, she stated that she was invited to the party by S.L., but agreed that S.L. did not live there and was not hosting this party. B.R.N. had texted S.L. on Facebook and said "Yo come get me, I'm bored." S.L. responded, "I can't. I'm in West Bay. Why don't you come over and have a few drinks?" Right after S.L. invited her to come, B.R.N. went over to the party. Her purpose in going there was to hang out with S.L., enjoy the party and have drinks. In cross-examination, B.R.N. stated that she did not have any alcohol of her own but S.L. said that she had drinks. This was not B.R.N.'s first time consuming alcohol. B.R.N. confirmed in cross-examination that she did not know the people that lived at the residence.

[8] B.R.N. stated that when she arrived at the party, she knew S.L. and Joseph Ense, who were already at the party. S.L.'s white Dodge half ton truck was parked in the driveway. B.R.N. stated that she knew S.L., as she had been her babysitter when B.R.N. lived in Aundeck Omni Kaning ("AOK"). S.L. had her baby with her that day, as well as a young man named, A., who was about 9 or 10 years old. At sunset, A. and the other kids went back to AOK. S.L. also left but she returned to the party.

[9] Regarding Joseph Ense, B.R.N. testified that she knew him because he would message her on Facebook, asking her to go on dates, and she would also see him walking down the street. When asked whether she ever told Joseph Ense her age, she stated "ah not that I remember, no". Jordan Ense, Marshall and Adam were also at the party when she arrived, along with other people that she did not know. In cross-examination, B.R.N. agreed that most of the people at the party were older than her, in the range of 25 to 30 years old. S.L. was in her late 20's.

[10] At the house party, B.R.N. started drinking. She went and sat at the table where others were present. According to B.R.N., approximately 10 minutes after she arrived, Jordan Ense came over to her and said "Do you know what the Bronx are all about?" She replied, "Well I've lived here for a bit but I – no I don't know what they're all about". Jordan Ense then stated, "Well when people drink they like to have sex. What would you do if somebody here would like to have sex with you?" B.R.N. replied, "I don't know" and then walked out laughing. She testified, "I was like 'um, okay that's weird'. B.R.N. was aware that the Bronx referred to downtown M[…]. B.R.N. stated that after this conversation she went around the corner of the front of the house and "just laughed kind of" and then went back in after 5 minutes. She stated that the conversation made her feel uncomfortable. In cross-examination, she agreed that Jordan Ense said "People in the Bronx like to drink and when they drink what if someone wants to have sex with you?" There were other people there that were able to hear this conversation and they all started talking about it and laughing. She agreed that she laughed herself and walked outside. Further in cross-examination, it was suggested to her that she was laughing to herself outside, to which she responded, "No, I just kind of stopped laughing and was kind of freaked out a little bit". She said "it wasn't okay for him to say that, but I wasn't going to say anything I was nervous. It wasn't my house. There's was a mad amount of people there." She attempted to clarify and stated, "I was like, I laughed, and I said, "Ha ha okay," and I walked outside, and I did feel uncomfortable…."

[11] B.R.N. agreed that she reviewed the transcript of her police statement the night before and the morning before she testified. This statement was given to the police the day after the incident. That was the only thing that she reviewed prior to testifying.

[12] She agreed that she said to the police in her statement, "And ah then all the guys kind of started about it and laughing. And then I walked outside. I was laughing. I just walked outside, I was like 'kay." She agreed that at no point did she tell the police she was uncomfortable. However, at trial she stated, "I know a hundred percent it was uncomfortable with that." She also agreed that she did not tell anyone at the party that she was uncomfortable.

[13] In cross-examination, B.R.N. admitted that one of the first times Jordan spoke with her at the party, he asked how old she was and she told him she was 17 years old because "I didn't want to get kicked out". She said "I thought that he wouldn't want an underage person drinking." She agreed that even at 17 years old she would still be underage to drink alcohol, however, she said "Yes, but it's a year older……it would change it a little bit. It's a year older". When asked why she thought Jordan Ense would be concerned if she was 16 and not if she was 17, she responded "Cause, the way that he asked me how old I was, was like didn't really want me there because I was – just in case I was young". She agreed that this conversation also occurred at the table with other people present. B.R.N. had not mentioned this conversation with Jordan Ense during her examination in-chief.

[14] After she went back inside the house, B.R.N. was sitting at the table with S.L. and another girl. All of the males at the party were still out back doing weights. When they finished, B.R.N. went out and did weights, specifically the bench press, for about five or ten minutes. B.R.N. went back inside the house after she finished the weights. She agreed that she was drinking at that point and that she started drinking as soon as she got to the party. She recalled drinking Black Fly, Molson Canadian, Smirnoff Ice, and Forty Creek whiskey. In cross-examination, she added that when she was done doing weights, Joseph Ense was hugging her.

[15] Back inside the house, she sat at the table and talked to S.L. and everyone that was at the table. She stated that she sat at the table pretty much the whole time until she went upstairs to use the bathroom. She had asked S.L. to come with her because she felt uncomfortable but she did not tell S.L. that she was uncomfortable.

[16] According to B.R.N., when she went upstairs to use the bathroom, Joseph Ense was following her, holding on to her coat. She went into the bathroom and shut the door, but did not lock it. Joseph Ense just pushed the door open, came in, closed the door behind him, and was standing over her. She was actually using the bathroom at the time. When asked if she said anything to him, B.R.N. stated that she said "What are you doing, go away. Get out of here. I'm using the bathroom." She could not remember Joseph Ense saying anything to her.

[17] In cross-examination, she agreed that she told the police that she believed that there was someone in the bathroom but she did not know for sure. However, she then stated, "yes, I know – I remember now that that was a hundred percent true." She agreed that her memory had improved. She also agreed that at the time she spoke to the police her memory would not have been hampered by time because it was the very next day. She was not intoxicated when she gave the statement to the police. She agreed that she said to the police, "And then I went upstairs and went to the bathroom. I don't remember but I – I swear – I swear I saw it. Like I saw a guy in there while I was using the bathroom", meaning that she was convinced that there was a guy in the bathroom. Later on to the police, she agreed that she said "I swear like I saw the guy". She stated at trial, "I didn't know. I didn't remember the next day……There was a guy there, I remember now."

[18] Further in cross-examination, there were other passages of her police statement that were put to her which she agreed that she said. She agreed that the following exchange took place with the officer:

Officer: Okay you'd – you had mentioned briefly earlier that there was, you thought, there was somebody in the bathroom or there's….

B.R.N.: Yeah

Officer: ….somebody in the bathroom?

B.R.N.: I swear that I – I don't like, I don't want to – I don't know how I'd say that but I'm pretty sure I remember I was sitting on the toilet and I saw like Joe. It was Joe standing there 'cause like I remember seeing a black sweater with the red thing.

Officer: And this is while you're using the bathroom?

B.R.N.: Mm hmm

Officer: When was that, was that before or after

B.R.N.: I

Officer: ….what occurred outside?

B.R.N.: Before, 'cause I ran away. So obviously when I – yeah, I'm pretty sure when I ran away it would have been because of that.

[19] B.R.N. testified that she then got up and went out of the bathroom and into the livingroom upstairs. Joseph Ense followed her, pushed her on the bed in the livingroom, so that they were both laying on the bed. She stated, "he was like holding me, like hugging me and holding me and he wouldn't stop kissing me". He wanted to kiss her lips but she would not let him. When asked whether she said anything, she testified that she said "What are you doing? Leave me be". She indicated that she probably said things like that multiple times, but she could not remember exactly how many times. She did not tell him that it was ok to do what he was doing. He was touching the upper part of her body, holding on to her. This went on for about five or ten minutes. No one else was upstairs at that time. B.R.N. testified that this made her feel uncomfortable.

[20] In cross-examination, B.R.N. agreed that she did not tell the police about being on the bed with anyone. She could not remember whether she said anything to the police about a bed being in the livingroom at the party. It was suggested to B.R.N. that this was the first time she had made some assertion about being on a bed with Joseph Ense and she said "Okay, yeah". When asked to explain that, she said, "Because I just – I didn't remember the day after….It just came to me". She agreed that this incident happened when she was intoxicated and yet when she was sober talking to the police, she did not remember it. However, now, 14 or 15 months later, she remembered it with certainty.

[21] Further in cross-examination, she agreed that the house is two levels and that the guests at this party were up in that livingroom using the computer and playing video games during the party. She also agreed that the only bathroom was upstairs. She agreed that at the top of the stairs was the livingroom where the computer and video games were located. That was also where the bed in question was located. She said that no one saw this occur because no one was upstairs at that time.

[22] Eventually, Joseph Ense let her up. She then went and checked her Facebook on the internet. Joseph Ense continued to hug her and tried to kiss her while she was checking Facebook.

[23] In cross-examination, she agreed that she told the police in her statement the following:

And then I remember I checked my Facebook and ah I – I just sat upstairs listening to music and then Joe tried to hug me and he's like, 'What if they find out that I like you and stuff'? and I was just like 'kay, that's your problem'".

At trial, she remembered that happening when the passage was put to her.

[24] At this point, Jordan Ense came upstairs and smelled her hair and said "Oh I like that smell". This also made B.R.N. feel uncomfortable. In cross-examination, she agreed that she interpreted this as a "come on". In cross-examination, she agreed that she told the police about Jordan Ense coming upstairs and smelling her hair. Further, she said to the police, "I was just like, okay."

[25] B.R.N. explained that she had no attraction to either of them (Jordan or Joseph Ense) and they were trying to push themselves on her.

[26] B.R.N. explained that after these events she went back downstairs. She stated that she kept looking back at the stairs to make sure they were not following her. She then went to the kitchen and got a mug full of 40 Creek whiskey and a glass of water. She indicated that she did not want people to see the face she makes when drinking whiskey straight so she went outside. As she did this, another male started pouring himself a drink at the counter and said "Jordan follow her she wants you to touch her ass". Jordan Ense opened the door for her and they walked outside. She stated "I tried to change the subject by giving him shots, but that didn't work". The shots of alcohol were coming from her mug of Forty Creek. She was not sure how many shots she offered to him. She also added that Joseph and Jordan Ense were kissing her neck and she told them to stop and was pushing them away.

[27] B.R.N. then saw Adam standing outside. She said to him "What are you doing out here?". In cross-examination, she explained that she meant "what's up". He said, "Nothing" and went back inside. Later in her evidence she stated that Adam's response to her question about what he was doing there was "Standing here". It was suggested to B.R.N. that the reason she asked Adam what he was doing was because he was interrupting something with her and Jordan. She disagreed with that suggestion.

[28] In cross-examination, B.R.N. agreed that when she described these events to the police, she had indicated that it was only Jordan Ense that followed her outside and was initially kissing her neck. She then clarified that Joseph Ense came afterwards. She was then referred again to her police statement wherein she indicated that she had also gone inside at some point. She then said "So obviously that was a different time". She then explained that there were two different times that she went outside and that someone was kissing her neck, once it was just Joseph kissing her neck and the other time it was Jordan and Joseph.

[29] The next thing that she remembered was either Jordan or Joseph Ense grabbing her hand to make her touch their penis. Jordan and Joseph were both there at the time. This was happening in the yard close to a truck. Her back was against the truck and Jordan and Joseph were on either side of her, however, she did not know who was on which side, although she had a "feeling" that it was Jordan on the left and Joseph on the right. As one of them was grabbing her hand trying to make her touch their penis, she said, "No, stop". This happened a couple of times. She would tell them to stop and kept pulling her hand away. She did not ever touch the person's penis. At that time, she did not remember anyone's penis being exposed. No one else was there at the time other than B.R.N., Jordan Ense and Joseph Ense.

[30] In cross-examination, an excerpt of B.R.N.'s statement was read to her wherein the following exchange occurred:

Officer: Did you tell them to stop?

B.R.N.: I don't remember

She agreed that she said that but stated, "okay well I did tell them to stop". She could not remember how long this went on for and that was what she told the police.

[31] Further in cross-examination, it was suggested to B.R.N. that she told the police that when Joseph and Jordan Ense were there and one of them was trying to get her to touch them in a sexual way, she told Adam to go away. She disagreed with that. A portion of the statement was then read to B.R.N. as follows:

Officer: Did Adam say anything, or did he intervene or?

B.R.N.: No

Officer: Do you know how long he was standing there?

B.R.N.: I saw – I heard the door open and then I was like 'Get the fuck away,' and I went inside and I just like, 'kay'"

She agreed that she said this to the police but that she was not suggesting that she made this comment to Adam. The statement continued:

Officer: Did you say that – did you – you said, 'Get – get the fuck away to who?

B.R.N.: I didn't exactly say that, but I said I was like, 'kay stop.

Officer: Okay, stop, and who did you say that to?

As this passage was being read to B.R.N. at the trial, she interjected and said the comment was being made either to Joseph or Jordan Ense.

[32] The next thing that B.R.N. remembered was facing the truck and her pants and Jordan Ense's pants were down and Jordan Ense was having sex with her. She did not remember if she said anything at that point. She just remembered pulling up her pants, crying and running.

[33] In cross-examination, it was suggested to B.R.N. that when she described these incidents to the police, after talking about either Joseph or Jordan Ense trying to get her to touch their penis, the police officer asked, "Was there any other sexual contact between Jordan, Joe and yourself? Her answer to the police was "I'm pretty sure. I don't remember most of the night". B.R.N. agreed that she said this to the police and agreed that she did not remember most of the night. When the officer asked for clarification about this comment by saying "when you say you're pretty sure like, like what do you mean like", B.R.N. stated, "It could have, it could not have". She agreed that this was the exchange with the police. She agreed that she told the officer that she was unsure if there was any other contact between the three of them.

[34] Further in the statement with the police, the following exchange happened:

Officer: Do you recall if there was any sexual penetration at all throughout the night, that's penis and vagina sex?....I have – I have to ask, and I know it can be uncomfortable question?

B.R.N.: No

Officer: No?

B.R.N.: I don't remember

Officer: You don't remember

B.R.N.: I don't remember

B.R.N. agreed that this was the exchange that took place with the officer and that it was true at that time. Further on in the statement, the following exchange took place:

Officer: When you called C.B., you had told her that you were – you were raped at Marshall's, do you recall that?

B.R.N.: (no verbal response)

Officer: Can you…

B.R.N.: I'm – I remember that I said it a lot last night

Officer: Yeah, what did you – what did you mean by that when you said you were raped at Marshall's?

B.R.N.: That they raped me

Officer: And by they who are you referring to?

Defence counsel then stopped and asked B.R.N. who she was referring to at this point in the statement and she responded "Obviously, Joe and Jordan". She agreed that at trial, she testified that she recalled being raped by Jordan Ense. She confirmed that she had no memory of being raped by Joseph Ense. When asked why she told the officer that she was raped by both men, she responded, "I don't know, it was three o'clock in the morning, I was tired. I wanted to get it over with."

[35] B.R.N. testified that she ran through a trail and ended up at her friend A.C.'s house. She was in front of A.C.'s house using her Wi-Fi so that she could reach out to her cousin, C.B. A.C. heard B.R.N. crying outside and came out. A.C. and another female then went with B.R.N. to the complex, where B.R.N.'s cousin, R., picked her up. B.R.N. was screaming "He raped me" and she was crying. R., who was dating C.B., drove over to where the party was occurring, stopped in front of the house and was going to beat them up but B.R.N. said, "No, I just want to get out of here, let's go." Then they drove back to C.B.'s mother's house. She had some discussion with C.B. and then C.B. said she was calling the police.

[36] B.R.N. recalled being in her cousin C.B.'s truck when her cousin called 911. She was in the truck and her cousin had the door open and was standing. When asked whether she remembered her cousin being on the phone with a 911 operator she responded, "No, I don't remember that." B.R.N. did not recall saying things to C.B. while C.B. was on the phone with the 911 operator. B.R.N. confirmed that she did not review the transcript of the 911 call prior to testifying and in fact she had never reviewed such a transcript. B.R.N. agreed with defence counsel that she did tell C.B. and the 911 operator that she had been raped. However, she then said that she did not remember C.B. calling, but she remembered the ambulance showing up. B.R.N. repeatedly stated that she did not remember the 911 call.

[37] B.R.N. got into an ambulance. She did not remember the ride to Mindemoya, but she knew that they went to Mindemoya hospital. She stayed overnight and then the next day around dinner time, she had to go to the Sudbury hospital. A police officer drove her to Sudbury. At the Sudbury hospital, they performed a "rape kit" and she had to take a bunch of pills. Victim Services then drove her back to Manitoulin Island.

[38] B.R.N. confirmed that she never told either of these men that was it was ok to do these things to her. She also confirmed that she did not tell them that she wanted this to happen. She never invited them to do these things to her. She agreed that when these things happened to her, she was drunk, and that she did not remember the full night, but she remembered parts of it. When asked what she remembered with the most clarity, she stated, "When he came in asked about the bongs and my cousin picking me up and going to the hospital and what Jordan did to me."

[39] B.R.N. confirmed in cross-examination that she was really intoxicated as these events were occurring. On a scale of one to ten, one being cold sober and ten being near black out, she put herself at an eight to ten. She admitted that her memories of that night are not complete. She agreed that even when she spoke to the police, her memory was spotty. B.R.N. agreed that her memories were a few minutes here and there. She agreed that her total memories at the party were less than an hour. For example, B.R.N. did not recall any fight at the party between two men.

[40] B.R.N. agreed that there were some new parts to her version of events that she had introduced at trial:

• The details of the bathroom scene
• The allegation of the bed
• Jordan and Joseph Ense were very close to her when she had her back against the truck
• Sexual intercourse between her and Jordan Ense up against the truck

In re-examination, B.R.N. was asked why she did not indicate any of these things to the police and she stated, "I – honestly, I just didn't remember." She was then asked to explain why her memory is clear about those things to which she responded, "when you think back and on what happened the night you're drunk, that you were drunk, sorry….you tend to remember things."

Adam Roy

[41] Adam Roy testified to an incident that occurred at the residence of Marshall Migwans, in the Village of M[…], in early November 2016. There was an altercation with Mr. Roy and another male, Blaine Corbiere. He initially stated that he did not recall who else was at the residence that night as it was too long ago. He did not recall what time he arrived at the residence, or whether it was light or dark outside when he got there. In cross-examination, Mr. Roy agreed that Marshall Migwans' house is located in an area of the M[…] reserve which is referred to as "The Bronx" and that it is on Pine Street. He agreed that the residence was sort of a hang out and that a lot of partying occurred there. He agreed that he had been to a lot of parties at the house.

[42] Adam Roy indicated that he knew Jordan and Joseph Ense and identified each of them in the courtroom. When initially questioned, he did not recall whether Jordan and Joseph Ense were at the residence on the night that he had the altercation with Blaine Corbiere.

[43] Mr. Roy testified that he was drinking beer and vodka when he was at the residence. He believed that he drank half a case of beer and a whole bottle of vodka. He admitted that he was feeling the effects of the alcohol.

[44] Mr. Roy did recall that B.R.N. was at the residence on the night of the incident with Blaine Corbiere. He indicated that it was dark out when he remembered seeking B.R.N. When asked if he saw B.R.N. drink anything, he responded "I don't think so, I can't remember no". In cross-examination, he agreed that he never saw B.R.N. with a drink in her hand at the party. When asked if he recalled B.R.N. speak with anybody at the party, he said "everybody". When asked again who else was there, he said "well there was probably just me, Jordan, Joe, Marshall, that's about it and it's just everybody's in and out, right". He confirmed that he was referring to Jordan and Joseph Ense. He stated that everybody was drinking. Mr. Roy confirmed that B.R.N. was talking to him, to Jordan and Joseph Ense, and to Marshall Migwans.

[45] In cross-examination, Mr. Roy agreed that Blaine Corbiere and Harley Beboning were at this party and that there was a fight involving Mr. Roy and these 2 individuals. He agreed that Blaine Corbiere got beaten up pretty bad later that night. He was asked whether S.L. was also there, but he had no recollection of her being there. He was also asked whether there was a half-ton truck parked in the driveway and it was suggested to him that S.L. and her boyfriend arrived there in that half-ton, but he had no memory of this at all.

[46] Mr. Roy stated that they were all partying around the table that was in the livingroom. He did not see B.R.N. talk to either Jordan or Joseph Ense at any other place in the house. He could not tell what was going on between B.R.N. and either Jordan or Joseph Ense when she was talking to them. He could not say how long the discussion lasted. He did not overhear any parts of it. Mr. Roy agreed that B.R.N. was not confining her conversation to any one person. In cross-examination, when asked whether he saw B.R.N. talking to both Joseph and Jordan Ense at the party, he stated "I guess so yes", but he agreed she was not talking exclusively to them.

[47] Mr. Roy estimated that he left the party and went home around 3:00 a.m. He did not remember whether B.R.N. was still at the house when he left. He did not know whether she left the house. In cross-examination, Mr. Roy agreed that B.R.N. was there throughout the party. He did not recall her being there during daylight hours, only in the evening.

[48] Mr. Roy described Marshall Migwans' house as "sort of a split-level house". He agreed that the table was in the downstairs part of the house. The game area is in the upstairs, with a computer and a TV. He agreed that he went up to the game area at certain times during the day and played some video games and played on the computer. There was also a couch up in that game area. Mr. Roy stated that Joseph Ense went up to the game room and played on the computer that night. With respect to Jordan Ense, he did not remember him being up in the game room or being on the computer. He did not recall B.R.N. being up in the game room either. He confirmed that he only saw B.R.N. talking to Jordan and Joseph Ense at the table in the livingroom.

[49] In cross-examination, Mr. Roy agreed that he gave a statement to police which covered two main themes; one being the fight in which Blaine Corbiere was hurt, and the other being that something had happened to B.R.N. at the party. He agreed that he told the police that he saw Jordan Ense flirting with B.R.N. and he agreed that this was what he saw. He also agreed that Jordan Ense was not pushing himself on B.R.N. that he could recall.

[50] Finally, in cross-examination, Mr. Roy agreed that B.R.N. seemed to be at ease at the party and was socially interacting with others in the room. She seemed to be comfortable. He did not sense any tension between B.R.N. and any other person. Mr. Roy admitted that he did not have any specific recollection of B.R.N. speaking to Joseph Ense.

Detective Constable Ed Simon

[51] Detective Constable Ed Simon testified that he had been with the UCCM Police since 2009. He had been a detective constable since May 2014.

[52] In early November 2016, DC Simon was called by Acting Sergeant Max Abotossaway who notified him that there was a report of a sexual assault. At that time, there was no accused or scene. DC Simon was out of town so he indicated that he would be in as soon as he got back to Manitoulin Island. He returned to Manitoulin Island the next day.

[53] Later in the investigation, he attended Health Sciences North in Sudbury to pick up a sexual assault evidence kit. On November 22, 2016 at 11:12 a.m., DC Simon called Health Sciences North in Sudbury. He spoke to Barb Mathews, a nurse in the Violence Intervention Prevention Program. DC Simon identified himself and advised that the reason for the call was to check on the status of the sexual assault evidence kit performed on B.R.N. The nurse provided some information to DC Simon and based on that information, he travelled to Sudbury to pick up the sexual assault evidence kit on the same date, November 22, 2016. He arrived in Sudbury at 3:03 p.m. on that day.

[54] DC Simon attended at the office, spoke with the nurse or staff at the office and advised as to his reason for being there. They went to another room, which he believed was an examination room. There was a key code at the door to get in to the room. There were cupboards with locks on them. The nurse retrieved the sexual assault evidence kit from a locked cupboard. She retrieved two more exhibits from a locked refrigerator. DC Simon and the nurse signed paperwork and then the items were turned over to DC Simon. The sexual assault evidence kit was sealed when DC Simon received it.

[55] DC Simon took the kit and the other items that he received to his vehicle. DC Simon had a cooler in the back of his vehicle. The items that had been in the refrigerator were placed in a closed cooler. He then returned to Manitoulin Island.

[56] Upon return to the UCCM police station in M[…], DC Simon removed the exhibits from the back of the vehicle and took them to the evidence vault. He placed the sexual assault evidence kit on his shelf in the evidence vault. The exhibits from the cooler were placed in a refrigerator in the SOCO room. The items that had been placed in the refrigerator were samples of urine and blood. DC Simon stated that both the evidence room and the SOCO room are secure areas. With respect to the SOCO room, he stated that every UCCM police officer that has the key code to the door has access to that room. With respect to the property vault, most UCCM officers have the code to that door, but not all.

[57] On December 13, 2016, DC Simon called the Centre of Forensic Sciences ('CFS") in Sault Ste Marie and spoke to a biologist, Ronald Lai. DC Simon advised Mr. Lai of what he had and gave him a brief summary of the case. DC Simon asked what exhibits he should send up for analysis and Mr. Lai provided DC Simon with some information.

[58] On December 19, 2016, before sending the items to CFS, DC Simon opened and inventoried the sexual assault evidence kit. Inside the kit was clothing (specifically, underwear), swabs, and a drop sheet. The kit was sealed when he first came into possession of it and it remained sealed until DC Simon opened it on December 19, 2016. DC Simon filled out a CFS submission form, which was an inventory of what was inside the kit. This took about a half an hour. The kit was then resealed by DC Simon with the CFS seal. This seal was still visible on the box in court. The kit was then placed back into the evidence vault.

[59] On December 21, 2016, DC Simon removed the sexual assault evidence kit from the evidence vault and removed the exhibits from the SOCO refrigerator. He placed the items into a Styrofoam cooler, placed them in the vehicle and travelled to CFS in Sault Ste. Marie. DC Simon drove the items there himself which was approximately a 4 hour trip each way.

[60] At CFS, DC Simon signed in and met with a receiving officer. The items were turned over to that officer. The items subsequently came back to DC Simon's possession, however he did not know when as it was couriered back to the office.

[61] The sexual assault evidence kit was sealed when it was brought to court. He had not opened any of the seals. He opened it in court. He testified that there did not appear to be any changes to the contents of the kit. The kit included swabs, a drop sheet, and a brown paper bag, containing grey underwear which were taken from B.R.N. The sexual assault evidence kit was marked collectively as Exhibit 1.

[62] DC Simon was recalled on the second day of trial, prior to the Crown closing its case. DC Simon indicated that he was aware of the results of the DNA and that there were 2 male DNA profiles found. As a result of this, he prepared two separate Information to Obtain affidavits to support warrants for the taking of bodily substances for forensic DNA analysis from Brian Jordan Ense and Joseph Ense. The judicial authorization was received on November 8, 2017 (both warrants were signed on November 8, 2017). The warrants were executed on November 13, 2017 for Joseph Ense and on November 27, 2017 for Brian Jordan Ense (this is noted on the face of the warrants). The samples obtained were taken to the lab in Sault Ste. Marie by DC Simon personally on November 29, 2017. The samples were turned over to receiving officer Jennifer Forbes. The DNA warrants were marked as Exhibits 3 and 4.

Ronald Lai

[63] Ronald Lai, a forensic scientist with the Biology Section of the Northern Regional laboratory of the Centre of Forensic Sciences, Ministry of Community Safety and Correctional Services, in Sault Ste. Marie, was qualified as an expert to give evidence at the trial, on consent of the parties. The specific area of his expertise was examination of case items for the presence and identification of body fluids, and the interpretation of the results of forensic DNA analyses of biological samples. The affidavit of Ronald Lai, including various exhibits, was marked as Exhibit 2 in these proceedings.

[64] Mr. Lai explained that he did author all three reports prepared for this case. The actual handling of the items was done by a forensic technologist. He then read the notes and interpreted the results. He explained that he is trained to actually handle the items, however, he did not do so in this case. Generally, the majority of the lab work is done by the technologist. The scientists review and interpret the results. He testified that his knowledge and expertise plays into how he interprets the results. He also did the initial assessment to determine what tests needed to be done. As is typical in most cases, and as was done in this case, Mr. Lai stated that when a case comes in, he will look through the case history and the items submitted and assess what course of analysis needs to be done. Then one of the forensic technologists follows those instructions and does the work. The case notes from that work return to Mr. Lai. He then checks to see if everything has been done, and if so, he writes the report. There is then a review by a second scientist. In this case, the first report was reviewed by Michael Bissonnette and the second and third reports were reviewed by Tara Brutzki.

[65] Mr. Lai explained that DNA is the substance found in liquids and tissues of all living things. Each of us get half of our DNA from each parent. More than 99% of DNA between individuals is the same. Forensic scientists focus on the 1% that is unique to every individual, with the exception of identical twins. Once a profile is obtained from DNA analysis, the sample can then be compared to a known person. As a forensic scientist, he is not able to say when or how a stain was put on an item, although he indicated that he is able to offer an opinion on transfer. He explained that blood contains a lot of DNA. If there is a lot of the substance and it is wet, it would transfer well to another item. There are primary, secondary and tertiary transfers. If blood drops on a table, it is primary transfer. If another object touches that blood on the table, this is secondary transfer. If another item touches that item that touched the blood on the table, that would be tertiary transfer and so on. Saliva is also rich in DNA and transfers well. Skin cells are less rich in DNA.

[66] The persistence of the sample depends on environmental conditions. If the item is stored at room temperature, the stain is stable for an indefinite period of time. If the conditions are humid, or if there is a lot of sunlight on the item, the sample will degrade. The time it will take for a sample to degrade would depend on the environmental conditions. If the item is exposed to humidity or sunlight it will degrade quickly. If the item is kept in a freezer, it will be preserved for years. Saliva, like blood, can be preserved for a long time.

[67] Mr. Lai then explained each of the reports that he authored, which were all marked cumulatively as Exhibit 2, along with Mr. Lai's affidavit.

[68] The report dated February 17, 2017 dealt with a number of swabs collected during the examination of B.R.N. These swabs were oral, skin, vaginal and rectal. The swabs were submitted by the UCCM police, specifically DC Ed Simon. The samples were contained in a standardized kit, known as a sexual assault evidence kit. These particular items were all received in sexual assault examination kit #62323. (This is the number on the sexual assault evidence kit marked as Exhibit 1.) The right neck swab was determined to be a mixture of 3 people – one of which was determined to be B.R.N. There was also a major male profile, named Profile 1. Further there were minor amounts not suitable for comparison. The left neck was determined to be a mixture of at least two individuals, being B.R.N. and the same major male, Profile 1. There were negative results from the other areas. At that time, the only know source of the DNA was from B.R.N.

[69] In cross-examination, Mr. Lai agreed that with respect to skin neck swabs, DNA can deposit in that area even just when the person is walking around. Someone talking behind the person, or close to the neck of the person, could deposit DNA on the neck. If the person were to wear someone else's shirt, that could deposit DNA. Mr.Lai indicated that he would not expect DNA on the neck to persist for more than a few days, and even less if showering occurred.

[70] The report dated March 6, 2017 dealt specifically with the underwear collected and contained in the sexual assault evidence kit, which was examined for semen and saliva. Semen was not detected, however possible saliva was detected. Mr. Lai explained that it was a presumptive test for saliva but it is not 100% certain. There were a few stains recognized as possibly being saliva on the underwear and those sections were cut out for analysis. In Mr. Lai's opinion, those stains were most likely saliva. In cross-examination, he agreed that it was possible it was skin cells but he would not expect skin cells to give this result. He could not say whether there might be skin cells as well as saliva. According to Mr. Lai, the analysis showed that saliva was detected in 2 areas: the crotch area and the front panel. Multiple samples were then taken from each of these areas. With respect to the crotch area, there was insufficient male DNA. There was DNA from B.R.N. With respect to the front panel, there were 3 samples analyzed. All 3 samples showed a mixture of 2 contributors: B.R.N.'s DNA and a male profile, Profile 1. It was the same male profile (Profile 1) on all 3 areas from the front panel of the underwear. Mr. Lai could not say how the saliva was transferred, other than to comment that wet stains transfer better. The fact that the report says major profile with respect to some of the analysis means that there is a mixture of DNA, and that Profile 1 was in greater quantity than the DNA from B.R.N.

[71] Mr. Lai indicated that he could not really comment on how a body fluid gets to a location, although some possibilities are that it could be deposited directly, such as if someone licks or spits on the object, or indirectly, such as from one piece of clothing to another. Although for this type of secondary transfer, Mr. Lai would expect there to be a lot of salvia and that it would still be wet in order for this to occur. Mr. Lai indicated that he would not expect saliva to transfer from outside the pants to the underwear unless there was a significant amount. For example, it would be unlikely for saliva to transfer through blue jeans but yet, if it were a thin material, it would be more likely to transfer.

[72] Mr. Lai could not say how long the sample was on the underwear. All he could say was that the underwear had not been washed.

[73] The report dated December 13, 2017 dealt with 2 known comparison samples from Joseph Ense and Brian Jordan Ense. Each of their DNA was compared to male Profile 1, located on the neck of B.R.N. and on the front panel of the underwear seized from B.R.N. Joseph Ense was excluded as the source. Brian Jordan Ense could not be excluded as the source. Mr. Lai explained that the fact that he could not be excluded does not necessarily mean it is the same person. The scientist then looks at how rare it is by generating a statistic. In this case, there were two explanations as to why Brian Jordan Ense could not be excluded as Profile 1; either he was the source, or he was not the source and it is coincidental. The Random Match Probability is an estimation of the probability that a randomly selected individual unrelated to the person in question would coincidentally share the observed DNA profile. In this case the estimation of probability was determined to be 1 in 45 trillion. This tells Mr. Lai that this DNA profile is extremely rare and provides strong scientific support that Brian Jordan Ense is the source of Profile 1. He clarified that he cannot be absolutely sure, as in order to be absolutely sure, he would need to know the DNA of everyone on the planet. However, this was strong scientific support for Brian Jordan Ense being the source.

[74] In cross-examination, Mr. Lai agreed that there were traces of DNA from a third person, other than B.R.N. and Profile 1, however, he was unable to pin down who that third person was. One of the right neck swabs had a third contributor, however, it was in such low amounts that he could not say whether it was male or female, or even whether it was one or more than one person.

[75] With respect to the DNA from the neck, there was no body fluid testing performed, therefore, it could be skin cells, saliva, or could be a combination. Mr. Lai simply did not know what the sample was. However, he stated that body fluids have much more DNA than skin cells.

[76] He could not say how or when the DNA was deposited. He indicated that typically he would expect DNA to be lost fairly quickly in a few days, or in a shower. However, he stated that it depends on when it was collected and whether there was showering or wiping.

[77] Mr. Lai agreed that if a person were wearing these underwear, it would be possible that she got some DNA on her hand, then touched her underwear. Mr. Lai explained that if there were a wet source, this is more likely to happen. As the substance dries, it is less likely to transfer. Also this type of transfer depends on the amount of the substance present. In other words, the more original material, the greater the likelihood of transfer. Mr. Lai stated that he would not expect DNA to persist on someone's hand for more than a few days, again depending on the circumstances.

[78] As far as the testing itself, 15 STR loci refers to the test that they use to do the analysis. 15 is the number of DNA locations that they look at, which is considered to be standard. Most labs use the same type of markers and agreed upon locations to analyze.

[79] Mr. Lai agreed that DNA analysis is easier when there is a single source. It becomes more complex as the numbers increase. The forensic scientist makes some assumptions when there are multiple contributors, for example, in this case, he assumed there was a dual major source and on one there was a third source. Where swabs are taken from a person's body, the scientist assumes that one DNA contributor will be the person themselves. He would then subtract that person's DNA to see what is left for the remaining profile. Mr. Lai stated that in this case, however, there was a major sample left so there was no problem with the analysis.

A.C.

[80] A.C. testified that she was 14 years old and that on November 5, 2016, she was 13 years old. On November 5, 2016, B.R.N. was staying with her. B.R.N. had some problems with relatives at that time.

[81] On the evening of November 5, 2016, A.C. was in her room with her brother R.J. and they heard loud sobbing. They thought some of their friends were messing around. They went outside. B.R.N. was on the road, trying to text her cousin. She was standing and crying. A.C. talked to B.R.N. She had never seen B.R.N. cry before. In A.C.'s opinion, B.R.N. was intoxicated and she had seen people intoxicated before. She estimated that on a scale of 1 to 10, 1 being sober and 10 being passing out / drunk, B.R.N. was probably a 6. She was tripping over her feet. She was, however, capable of texting. When B.R.N. was speaking, her words and thoughts made sense to A.C.

[82] A.C. started walking down the road with B.R.N. toward the complex to meet R. B.R.N. was still crying. When she saw R., B.R.N. started crying harder. C.B. was with R. She believed C.B. and R. were dating at the time. There was another person in the truck. B.R.N. cried to R. and then they drove very fast.

C.B.

[83] C.B. was called as the final witness. Ms. C.B. stated that B.R.N. was the younger cousin of her ex-fiancé. She agreed that they had spent lots of time together prior to these events on a day to day basis. They were close friends. B.R.N. was a bit younger than Ms. C.B. and Ms. C.B. was more like a mom, mentor or older sister to her. She eventually became B.R.N.s guardian for a year or two on an informal basis. Ms. C.B. described B.R.N. as generally being sensitive and shy at first but then she did not want to follow the rules. Ms. C.B. told B.R.N. that if she did not want to follow the rules, she should go live with her aunty. B.R.N. lived with Ms. C.B. before these events.

[84] Ms. C.B. confirmed that she received a message on Facebook from B.R.N. while she was at work. She had missed a call from her and had tried to call back. The signal was not great. It was near closing time when she received the Facebook message, so she estimated it was about 8:45 p.m. She arrived home around 9:00 p.m. or shortly after.

[85] According to Ms. C.B., B.R.N. was really drunk, kept repeating herself and was hysterical. She could smell alcohol. She was not passing out. Ms. C.B. asked B.R.N. what had happened and she testified that once she heard the word "rape", she called 911. According to Ms. C.B., B.R.N. had also mentioned "rape" in her Facebook messages. There were no names mentioned as to who might have done this before the call.

[86] During the testimony of Ms. C.B., a 911 call was played. Ms. C.B. recognized the voices as her voice, B.R.N.'s voice and the 911 operator. Ms. C.B. testified that she made the call and she thought at that time they were sitting in the truck. It was just her and B.R.N. in the truck at the time. Ms. C.B. agreed that B.R.N.'s thinking was all over the place and jumping around.

[87] The audio of the 911 call and the transcript of the 911 call were entered as Exhibit 5A and 5B respectively. Some excerpts from the 911 call were as follows:

C.B.: No, I just picked her up now and she's claiming that she, like, got raped, but I haven't got the full story from her –

B.R.N: As if they try to do that to me.

C.B.: Were there any weapons involved?

B.R.N.: I don't – I don't know, but they just wouldn't stop.

C.B.: Do you know where you were when this happened?

B.R.N.: At Marshall's house.

C.B.: At Marshall – Marshall Migwans, he lives downtown in the Bronx.

B.R.N.: I don't give a fuck what they say.

C.B.: Was it him that did it or were there multiple people?

B.R.N.: His brother – his brother was on top and I told him to –

C.B.: His brother Marlin?

B.R.N.: No, not Marlin –

C.B.: Not Marlin.

B.R.N.: Marlin is his – is his brother's –

C.B.: Okay. Who – what brother are you talking about?

B.R.N.: Not Joe. It was –

C.B.: Okay, Jordan?

B.R.N.: No, his middle brother

C.B.: Oh, I don't know – I don't know, it's one of Marshall's brothers.

B.R.N.: It was one of his.

C.B.: Yeah. Did you, like, get raped or like –

B.R.N.: I think so.

C.B.: You think so?

B.R.N.: Because I kept on telling all of them to stop.

C.B.: Why are you saying all of them?

B.R.N.: I don't know

C.B.: Were there – there was more people there?

B.R.N.: There was just more than one. There was.

B.R.N.: I kept telling them to stop and they –

C.B.: (Inaudible) I smell alcohol.

B.R.N.: That forty stuff.

C.B.: Forty Creek?

B.R.N.: And then Blackfly

B.R.N: I don't know what that all of them would try to do this to me.

B.R.N.: All's I remember was them asking me to come outside and they just – they just kept on asking me to come outside. But I thought that they just wanted to have a smoke. His brother Adam.

OPP CALL-TAKER: Is it Adam who did it?

C.B.: Who did it?

B.R.N.: I don't know who Joe – I don't know who his brother is, I don't know his name.

C.B.: No weapons used. But Joe was there when it happened. So what happened – you went out –

B.R.N.: His brother – not his brother Marshall, but his other brother.

C.B.: (inaudible) what happened once you went outside?

B.R.N.: He just kept on touching me, and he wouldn't stop. And I just kept on saying, stop touching me and he wouldn't stop.

C.B.: Okay. What else happened? Was that it?

B.R.N.: His – his brother came out, Joe and he – he always – he always wants to try, but I always tell him not to and then he tried to –

B.R.N.: They just kept on trying to, like -- that's all – that's all I remember is that they all –they all wanted to try and have sex with me and I told them no, but they wouldn't stop

OPP CAL-TAKER: So there was more than just the brother?

C.B.: Was it just Joe and someone else?

B.R.N.: Everybody that was there. Everybody. I don't know why they tried.

C.B.: Okay. But when you say everybody, you said –

B.R.N.: Everybody that was partying there, everybody that was partying there.

C.B.: So they were trying to pick you up and stuff?

B.R.N.: At the first I was what the fuck are you saying? What? Like, no.

C.B.: Okay, so then what happened when you went outside? Like did something like –

B.R.N.: Yes. They tried to rape me.

C.B.: What happened? Like, how did it start?

B.R.N.: He started kissing my neck, and then he started kissing me, and then he started grabbing me. And I was just like, who the fuck are you? Why are you doing this?

B.R.N.: Why would they ever do this? Why the fuck would they all (inaudible) like this.

B.R.N.: All's I remember is them trying to fuck me. That's all I remember

C.B.: Do you remember what you room or whereabouts in the house they were doing this?

B.R.N.: I don't remember. Almost every room in the house.

[88] Ms. C.B. stated that she thought that Marshall Migwans and Marlin Migwans were brothers to Jordan Ense and Joseph Ense, but she learned that they were cousins. She said that Joseph Ense and Jordan Ense have another brother, Nathan. She believed that Joseph Ense was the youngest, then Jordan Ense and then Nathan but she was not sure.

[89] Ms. C.B. explained that she lied to the police about going to the complex to pick up B.R.N. Her ex-fiancé actually went to pick up B.R.N. but he did not have a licence. He did not want to get caught driving without a licence.

Position of the Parties

Crown

[90] The Crown readily acknowledged that there were some problems with the evidence. However, he stated that B.R.N. was intoxicated at the time of these events and, therefore, some problems were to be expected. B.R.N. was adamant at trial that two men, Brian Jordan Ense and Joseph Ense, touched her sexually and that she was not consenting. B.R.N. testified that the two men participating in this behaviour were brothers.

[91] The Crown submitted that there was some support for her evidence. For example, Adam Roy saw Jordan Ense flirting with B.R.N. and this would suggest sexualized contact. Further, the evidence of Ronald Lai, who was qualified as an expert, testified that the DNA on B.R.N.'s underwear was the saliva of Brian Jordan Ense. There was no compelling explanation as to how that saliva got into her underwear in some innocent manner. There was no evidence that anyone spit on her or drooled on her. In the absence of another explanation, the Crown submitted, there was evidence that there was a sexual assault that she did not consent to. The Crown submitted that the only way the DNA would get there was if his mouth was in that area. As B.R.N. did not want this sexual contact, this would amount to a sexual assault. The Crown submitted that there was a compelling case against Brian Jordan Ense for these reasons.

[92] With respect to Joseph Ense, the Crown admitted that the evidence was somewhat disjointed. Other than the evidence of B.R.N., there was nothing to support it. The Crown submitted that the court would need to accept her evidence with its frailties.

[93] The Crown acknowledged that there were more details provided in court than in her statement. She was cross-examined vigorously about that fact. She was adamant that she recovered more details. The Crown submitted that she added details but she was not inconsistent with what she told people on an earlier occasion. Therefore, the Crown submitted, she cannot be found incredible.

[94] With respect to the sexual assault evidence kit and the DNA analysis, the Crown submitted that this is reliable evidence. There was no evidence of issues with continuity in this case, such as contamination, and that any suggestion of contamination would be pure speculation. Continuity is a matter of weight not admissibility. The Crown suggested that it would be impossible to call every collection person in every case and surely this was not required.

[95] The Crown cautioned the court about looking at stereotypical behaviour and suggested that the courts have stated that there is no predictability about what someone will do or not do when put in this position. The only thing the court should be looking at is whether there is evidence to support what B.R.N. was saying. The Crown submitted that the evidence was capable of proof beyond a reasonable doubt for both Joseph Ense and Brian Jordan Ense.

Defence – Brian Jordan Ense

[96] On behalf of Brian Jordan Ense, Ms. Haner submitted that there was no evidence that the DNA sample was actually taken from the neck or underwear of B.R.N. There was a belief that this was done, however, no one spoke about collection or continuity. There was a disconnect in the continuity which was too large to engage in any weighing of this evidence. Also with respect to the samples analyzed which were attributed to Joseph Ense and Jordan Ense, there was a failure to account for continuity from the individuals before the court.

[97] Ms. Haner also argued that the scientist called by the Crown, Ronald Lai, did not see or analyze the samples himself and the person or persons who did were not called by the Crown. Therefore, there was no assurance about lack of cross-contamination.

[98] Further, even if the court were to find that continuity had been established, there must be a consideration of the methods of deposit that were elicited from the expert. According to Ms. Haner, the expert was candid that there were many explanations for how DNA could be on the neck and the possibility of transfer between DNA found other places. B.R.N. could have come in contact with bodily substances containing DNA that could be transferred to and from her neck and underwear. Ms. Haner stated that the Crown's submission that the only way for DNA to have been deposited on the underwear was because this person's mouth was in her underwear was simply not true.

[99] Finally, it was submitted that even if the court could conclude that all of the items were satisfactorily put to the court and are reliable, the court still must consider the evidence and narrative of B.R.N. and whether it is credible and reliable.

Defence Position – Joseph Ense

[100] On behalf of Joseph Ense, Mr. Allison made four main arguments. As stated previously, Joseph Ense is now deceased, and therefore, his charges have been withdrawn. However, it appeared that Ms. Haner on behalf of Jordan Ense relied on and adopted the submissions made by Mr. Allison, therefore, the submissions continue to be considered by this court.

[101] First, Mr. Allison submitted that the credibility and reliability of B.R.N. was an essential component of the Crown's case and that the case really begins and ends with her. Mr. Allison provided a number of examples in B.R.N.'s evidence that should give the court concern about her reliability and credibility.

[102] Second, Mr. Allison submitted that the 911 call is significant, mainly because B.R.N. was unable to identify who did what to her.

[103] Third, Mr. Allison submitted that there was a problem with identification in this case. There was no in-dock identification in this case by B.R.N. and there was no physical description of the perpetrators by B.R.N. Mr. Allison acknowledged that there was an in-dock identification by Adam Roy, but Mr. Roy was not able to say who was doing what, if anything, to B.R.N. The critical issue of who B.R.N. was referring to when she used the terms "Joe" and "Jordan" was fundamental and had not been proven.

[104] Finally, Mr. Allison pointed out that the DNA did not implicate his client, however, the DNA was problematic. The officer went to the hospital and picked up a kit, however, the court was not given sufficient information about the origin of that kit, the handling of that kit, or the testing of that kit. According to Mr. Allison, there were serious continuity issues. Mr. Allison submitted that there was no burden on the defence to explain how the DNA got in a certain place. It was the Crown's burden to prove the samples were identified and accurate. Further, Mr. Allison pointed out that the Crown's own expert explained how samples could have been on the neck and underwear for other innocuous reasons.

Analysis

General

[105] The obligation to prove guilt rests with the Crown. To prove guilt of an offence, Crown counsel must prove each and every essential element of the offence beyond a reasonable doubt.

[106] Sexual assault is the intentional application of force, committed in circumstances of a sexual nature, such that the sexual integrity of the complainant is violated. (R. v. Chase, (1987), [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97 at para 11 and R. v. Litchfield, [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 at para 7.)

[107] In the present case, involving a charge of sexual assault, the Crown must prove beyond a reasonable doubt:

(1) that the accused intentionally applied force to B.R.N.;

(2) that B.R.N. did not consent to the force that the accused intentionally applied;

(3) that the accused knew that B.R.N. did not consent to the force that he intentionally applied; and

(4) that the force that the accused intentionally applied took place in circumstances of a sexual nature.

The elements of the offence outlined above must be considered separately and distinctly for Brian Jordan Ense and Joseph Ense.

[108] Before drilling down into these essential elements, there are a couple of issues that must be addressed at the outset, those being the use of the 911 recording and transcript, continuity and reliability of the DNA evidence, and identification.

911 Call

[109] The parties agreed that the 911 call was being introduced as a prior inconsistent statement of the complainant. The parties agreed to the authenticity and accuracy of the recording.

[110] In closing submissions, the Crown suggested that the 911 call should have been played for B.R.N. and that process was not followed. This would affect the weight given to this piece of evidence.

[111] When Mr. Allison was cross-examining B.R.N. about the 911 call, she stated a number of times that she did not remember the call. After several similar responses, there was an objection from the Crown as follows:

Mr. Beaton: Your Honour, I think the question has been basically asked and answered. She has been consistent that she does not remember this phone call. So putting things that she cannot remember or cannot give any cogent evidence on, seems absolutely pointless.

[112] There was then a discussion amongst counsel and the court as to whether there was some possibility that this 911 call would be introduced into evidence. The Crown indicated he did not intend to introduce the 911 call, however, Mr. Allison was very clear that he did intend to seek its introduction. The witness became very upset during this discussion and the court took a break. When court reconvened, Mr. Allison sought some direction from the court as to whether he was required to confront B.R.N. with the passages from the 911 call in order to comply with the rule in Browne v. Dunn. The court then asked the Crown his position. Specifically the court stated:

The Court: Let me find out what Mr. Beaton's position is. Mr. Beaton would you, if – if we stop now on this area of cross-examination, specifically on the 911 tape in putting specific passages to Ms. N, given her answers so far that she doesn't recall the comments at all or the call at all, would you argue at the end of the day that Mr. Allison has not complied with Browne and Dunn , if he stops now?

Mr. Beaton: I don't see that I could Your Honour. The reality is that if the witness just does not remember something, that is as far as it goes. You know I mean if Mr. Allison wants the tape in, although I don't see what point – probative value it would realistically have.

Mr. Beaton: ….so is there prejudice along the Browne and Dunn type of analysis? I don't know that there would be…..I mean how can you argue something when the witness doesn't have any memory, do you see what I mean?

[113] The Court then ruled:

Mr. Allison, it sounds like Mr. Beaton would not make that argument against you at the end of the day to say there is a Browne and Dunn violation, if I can call it that, and the court certainly would not fault you for not putting the balance of the 911 call to the witness in the sense of the Browne and Dunn rule.

So we will deal with admissibility of the statement or tape at a different time, but I don't think it is necessary for you to continue to ask the witness about the details of the 911 call. She has clearly said she does not remember on a number of occasions. So, I think we have her answer and you have put it to her in a number of ways.

[114] There is no question that defence counsel made many attempts to comply with the rule in Browne v. Dunn. His cross-examination on the 911 call was curtailed by the objection from the Crown and the ruling from the court. There was absolutely no violation of the Browne v. Dunn rule in this case.

[115] The 911 call was tendered as a piece of evidence through C.B. It is before the court as a prior inconsistent statement of B.R.N. The statement was admitted only to impeach the credibility of the witness by showing that on the prior occasion the witness said something inconsistent with the testimony given at trial. It is used for that purpose.

Continuity

[116] The argument regarding continuity of the sexual assault evidence kit and the DNA samples purported to be taken from Joseph Ense and Brian Jordan Ense were made as arguments of weight not of admissibility, therefore, the court will deal with them as such. See R. v. Andrade, [1985] O.J. No. 968 (C.A.); R. v. Armstrong, [2009] O.J. No. 1133 (S.C.), para 23.

[117] As stated in R. v. Adam, 2006 BCSC 1430, 2006 B.C.S.C. 1430, the weaker the evidence regarding continuity and the stronger the evidence suggesting contamination, the lower the weight that should be given to the exhibit or analysis. The court stated in part as follows:

15 Undoubtedly then, continuity of possession of the substance from the accused to the law enforcement officer to the analyst is crucial. However, Canadian case law makes it clear that proof of continuity is not a legal requirement and that gaps in continuity are not fatal to the Crown's case unless they raise a reasonable doubt about the exhibits' integrity. See R. v. Oracheski, supra; R. v. Dawdy, supra; R. v. DeGraaf (1981), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v. Taylor (1988), 93 N.B.R. (2d) 246 (N.B.Q.B.). These cases establish that it is not incumbent on the Crown to show detailed continuity of the location and handling of the exhibits from the time of their seizure by law enforcement officers to their deposit with analysts. McDermid J.A. for the Court in R. v. Oracheski, supra, said at pp. 220-21:

What the Crown must prove is that the material found on the respondent was a forbidden drug. It appears to me that the trial Judge, when he said the "problem is with respect to the continuity of that article" was in error. He was saying that the Crown must show and must call every person through whose hands the exhibit passed from when it was seized by the police from an accused until it gets into the hands of the analyst. In my opinion the Crown has no such duty. It must prove beyond a reasonable doubt that the article seized by the police from an accused was a prohibited substance. Here there can be no doubt that ex.1 was seized from the respondent and was taken by some person not called as a witness to the analyst and then was returned by the analyst by some method not shown and ended up in Court being identified by the detective.

The trial Judge stated that he was not satisfied on the evidence that the substance ex.1 was the substance seized from the respondent. The only reason for his dissatisfaction was that the other person who took the exhibit to the analyst was not called and that it might have been opened by someone else. In my opinion, the Judge's speculation that the exhibit might have been interfered with and opened by someone other than the analyst had not a title of evidence to support it.

16 Likewise, in R. v. DeGraaf, supra, Bull J.A. stated at p. 317 with reference to the decision of the trial judge:

I construe those reasons to mean that it was incumbent on the Crown to show detailed continuity of the location and handling of the exhibits from the time of their deposit into the locked narcotic exhibit security box until their return to the officer after analysis before commencement of trial. I think the Judge erred in such conclusion, which lays much stricter requirements of proof upon the Crown than the law requires. In effect, what was held was that the Judge had a reasonable doubt that the substances deposited in the box were the same as the ones sampled and certified to by the analyst and in due course returned to the officer. In other words, the requirement of showing continuity extends much further than the cases have held. It seems to have been completely overlooked that the evidence was clear and uncontradicted that the substances seized and identified in the manner described by the constables, were placed in a locked receptacle and received therefrom by the analyst who analyzed and certified the substance as cannabis (marijuana) which he found in a "sealed and unopened package" bearing the identification that the officer swore in Court was placed by him after taking possession thereof from the respondent.

17 It should be observed that in each of the above-mentioned cases, evidence was proffered by the Crown showing how the exhibit in question ultimately came into the possession of the analyst. In none of the cases did counsel for the accused present evidence that the substances were interfered with before they came to the hands of the analyst. So, there really was no question of contamination.

18 Where the evidence respecting continuity prior to analysis is not continuous, and on the whole of the evidence there is a reasonable apprehension that the exhibit is not in the same condition as it was at the time of seizure, the courts have generally resolved any doubt on the issue in the favour of the accused. See R. v. Laborgne, [1924] 2 W.W.R. 610 (Man. Co. Ct.); Rapchalk v. Atlas Assurance Co. Ltd. (1967), 63 D.L.R. (2d) 612 (Sask. Q.B.) ("Rapchalk"). Nonetheless, such doubts must be based on reasonable grounds arising from the evidence: R. v. Kolkiczka, [1933] 1 W.W.R. 299 (Man. Co. Ct.); R. v. Castell (1973), 34 C.R.N.S. 199 (Ont. C.A.); R. v. Oracheski, supra; R. v. DeGraaf, supra. In Rapchalk, supra, a civil action by an insured against an insurer, the court found that evidence of a blood sample of the plaintiff was inadmissible because "[n]o one testified as to who handled the blood sample, or as to what, if anything, was done to it from the time it left Yorkton until the envelope with the broken seal came into the possession of [the analyst]." In the alternative, if the evidence was admissible, then its weight would "surely be negligible or nonexistent."

19 In short, there is no specific requirement as to what evidence must be led to establish continuity, or by whom it must be lead. There is also no specific requirement that every person who may have possession during the chain of transfer should himself or herself give evidence. If there is a gap in continuity and if the trier of fact is not satisfied beyond a reasonable doubt that substances taken from the accused were the substances analyzed as being prohibited, then the evidence may still be admissible but this would affect the weight given to the exhibit and the evidence: R. v. Andrade (1985), 6 O.A.C. 345, 18 C.C.C. (3d) 41 (Ont. C.A.). The weaker the evidence regarding continuity and the stronger the evidence suggesting contamination, the lower the weight that should be given to the drug exhibit or analysis thereof.

See also R. v. Petro-Canada, [2009] O.J. No. 1704 (C.J.)

[118] In R. v. Aviles, [2015] O.J. No. 3978 (S.C.), affirmed by the Court of Appeal [2017] O.J. No. 3968, Justice Leach stated in part as follows:

86 Third, I think it must be remembered that proof of continuity is not a requirement of law. Gaps in continuity accordingly are not fatal to the Crown's case unless those gaps are capable of giving rise to a reasonable doubt about the integrity of an exhibit, and in that regard, there must be something more than mere speculation or "fantasy of the mind" that the exhibit might have been interfered with. In the absence of evidence to support such speculation or theories, reasonable doubt based on suggested continuity problems does not arise. In that regard, see MacFarlane, Frater and Proulx, Drug Offences in Canada (3rd ed.), at paragraphs 16.80 to 16.130, and authorities such as the following: R. v. Castell, [1973] O.J. No. 992 (C.A.); R. v. Oracheski (1979), 1979 ALTASCAD 140, 48 C.C.C. (2d) 217 (Alta. C.A.); R. v. DeGraaf (1981), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v. Kalashnikoff, [2000] B.C.J. No. 440 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 129.

[119] Further in R. v. Clancy, the court considered the continuity of forensic evidence by looking at the reliability and necessity of that evidence, as it was argued in that case that the evidence amounted to hearsay. This is not how the issue was raised in this case, however, it is of note that the court stated that the defence concerns in that case "were circumstantial, inferential, and invited me to engage in speculation".

[120] The court must be satisfied beyond a reasonable doubt that the evidence tendered in court was the same evidence seized from B.R.N. and Joseph and Brian Jordan Ense.

[121] In this case, I find that the evidence that was taken from B.R.N. at Health Sciences North in Sudbury was the same evidence analyzed at the CFS lab in Sault Ste Marie. I am further satisfied that the sexual assault evidence kit tendered as Exhibit 1 in this trial was the same evidence taken from B.R.N. at Health Sciences North in Sudbury and analyzed at the CFS lab in Sault Ste. Marie. This conclusion is supported by the following facts:

(1) B.R.N. testified that she stayed in the Mindemoya hospital overnight and that the next day, she was taken to the hospital in Sudbury by a police officer. She further indicated that a "rape kit" was taken at the hospital in Sudbury.

(2) There is a label on the sexual assault evidence kit box indicating "date opened 6/11/2016". There is a broken Ontario Ministry seal on the box dated November 7, 2016. This would accord with B.R.N.'s testimony regarding when she was taken to the hospital in Sudbury.

(3) On November 22, 2016 at 11:12 am, Detective Constable Simon called Health Sciences North in Sudbury. He spoke to Barb Mathews, a nurse in the Violence Intervention Prevention Program. DC Simon identified himself and the reason for the call was to check on the status of the sexual assault evidence kit done on B.R.N.

(4) Based on the discussion, DC Simon travelled to Sudbury in order to pick up the kit.

(5) He arrived in Sudbury at 3:03 p.m. on that same day, November 22, 2016.

(6) DC Simon attended at the office, spoke with the nurse or staff at the office and told them why he was there.

(7) DC Simon and the nurse went to another room, which he believed was an examination room. There was a key code at the door to get in. There were cupboards with locks on them. The nurse retrieved the kit from a locked cupboard. The kit was sealed when it was retrieved by the nurse. The nurse retrieved two more exhibits from a locked refrigerator.

(8) Paperwork was signed by DC Simon and the nurse, and then the kit and the items from the locked refrigerator were turned over to DC Simon.

(9) DC Simon took the kit and the items that he received to his vehicle. DC Simon had a cooler in the back of his vehicle. The items that had been in the refrigerator were placed in the cooler, the cooler was closed, and then he returned to Manitoulin Island with the kit and the items in the cooler.

(10) Upon return to the UCCM police station in M[…] on Manitoulin Island, DC Simon removed the exhibits from the back of the vehicle and took them into the station. The sexual assault evidence kit was taken by DC Simon to the evidence vault. He placed the kit on his shelf. The exhibits from the cooler, which were urine and blood, were taken to the SOCO room where there was a refrigerator.

(11) The evidence vault and the SOCO room are secure areas, only accessible by other officers who have the key code.

(12) On December 13, 2016, DC Simon called the Centre of Forensic Sciences in Sault Ste. Marie and spoke to a biologist, Ronald Lai. DC Simon advised Mr. Lai of what he had and gave him a brief summary of the case. DC Simon asked what exhibits he should send up and Mr. Lai provided DC Simon with some information.

(13) On December 19, 2016, before sending the sexual assault kit, DC Simon opened and inventoried the kit. Inside the kit was clothing (specifically underwear in a brown paper bag), swabs, and a drop sheet. The kit was sealed when he first came into possession of it and it remained sealed until DC Simon opened it on December 19, 2016. He filled out a Centre of Forensic Sciences submission form, which would be an inventory of what was inside the kit.

(14) The kit was then resealed by DC Simon with a CFS seal. This seal was still visible on the box in court. (There was a broken Centre of Forensic Sciences seal dated December 19, 2016) The kit was placed back into the evidence vault.

(15) On December 21, 2016, DC Simon removed the kit from the evidence vault along with the exhibits from the SOCO refrigerator. He placed those items into a Styrofoam cooler, placed that cooler in his vehicle, and traveled to CFS in Sault Ste. Marie.

(16) At the Centre of Forensic Sciences, he signed in and met with a receiving officer. The kit and exhibits from the refrigerator were turned over to that officer.

(17) The kit subsequently came back to DC Simon's possession, however he did not know when as it was couriered back to the office.

(18) The kit was sealed when it was brought to court. He had not opened any of the seals. He opened it in court. He testified that there did not appear to be any changes to the contents of the kit. There was a brown paper bag containing grey underwear from B.R.N, various swabs and a drop sheet. The sexual assault evidence kit was marked collectively as Exhibit 1.

(19) The sexual assault evidence kit marked as Exhibit 1 in court had a number of 62323. This was the same number that Ronald Lai provided from the kit that was analyzed at CFS in Sault Ste. Marie.

[122] With respect to the DNA samples obtained from Joseph Ense and Brian Jordan Ense, the following facts support the conclusion that the samples analyzed were the same samples seized from them:

(1) DC Simon indicated that he was aware of the results of the DNA and that there were 2 male DNA profiles. As a result of this, he wrote two separate Information to Obtain affidavits to support warrants for the taking of bodily substances for forensic DNA analysis from Brian Jordan Ense and Joseph Ense.

(2) The judicial authorization was received on November 8, 2017. This date was apparent on the face of the warrants.

(3) The warrants were executed on November 13, 2017 for Joseph Ense and on November 27, 2017 for Brian Jordan Ense. These dates were apparent on the face of the warrants.

(4) On November 29, 2017, DC Simon personally took the samples obtained from Joseph Ense and Brian Jordan Ense to the CFS lab in Sault Ste. Marie.

(5) The samples were turned over to receiving officer Jennifer Forbes.

[123] DC Simon was not cross-examined by either defence counsel.

[124] Based on the foregoing, this court is satisfied that the evidence obtained from B.R.N. and the evidence obtained from Joseph Ense and Brian Jordan Ense was the same evidence that was analyzed by the CFS lab in Sault Ste. Marie. There is absolutely no evidence to suggest that these items were interfered with or contaminated in any way.

Reliability of the DNA Evidence

[125] Even though this court is satisfied that the evidence obtained from B.R.N., Joseph Ense and Brian Jordan Ense is the same evidence that was analyzed by the Centre of Forensic Sciences in Sault Ste. Marie, the court must still consider and weigh the evidence of Ronald Lai, including the findings contained in the reports marked as Exhibit 2.

[126] From the evidence heard and submissions made, there would seem to be no reasonable doubt that Brian Jordan Ense is the source of DNA Profile 1 which was located on the skin swabs of the right and left neck of B.R.N. and on the stain from the front panel of the underwear seized from B.R.N. The probability that a randomly selected individual unrelated to Brian Jordan Ense would coincidentally share the observed DNA profile is 1 in 45 trillion. The findings in the report are subjected to a review by a second scientist before the analysis is released. It is the conclusion of this court that Brian Jordan Ense is the source of DNA Profile 1 found on the skin swabs and underwear.

[127] On the issue of how the DNA was deposited, Ronald Lai, fairly conceded that with respect to the neck, DNA could be fairly easily deposited. Regarding the front panel of the underwear, he was fairly certain that the stain was saliva, however, he could not provide certain evidence as to how or when the stain was deposited. Mr. Lai agreed that if a person were wearing these underwear, it would be possible that she got some DNA on her hand, then touched her underwear. Mr. Lai explained that if there were a wet source, this is more likely to happen. As the substance dries, it is less likely to transfer. Also this type of transfer depends on the amount of the substance present. In other words, the more original material, the greater the likelihood of transfer. Mr. Lai stated that he would not expect DNA to persist on someone's hand for more than a few days, again depending on the circumstances.

[128] Given this evidence, the court must be somewhat cautious about the weight to be attributed to the DNA analysis.

[129] The DNA evidence will be addressed again in dealing with the credibility and reliability of B.R.N. below.

Identification

[130] It is argued by the defence, on behalf of Joseph Ense, that there is simply no evidence, or at least no reliable evidence, of identification in this case.

[131] When considering identification evidence, the court must be alive to the specific frailties and inconsistencies in the identification evidence. See R. v. Grangello, [1999] O.J. No. 2043 (C.A.) There are well-recognized dangers inherent in identification evidence. Identification evidence can be notoriously unreliable. The court must be very cautious when considering identification evidence. Where the suspect is unknown to the eye-witness, there is the danger of an honest but mistaken identification. See R. v. Menard (1996), 108 C.C.C. (3d) 424 (Ont. C.A.) at 437 (appeal dismissed (1998), 125 C.C.C. (3d) 416 (S.C.C.))

[132] In the case at bar, B.R.N. testified with the use of a screen, which was erected in front of Joseph Ense and Brian Jordan Ense, on consent of the defence. Therefore, clearly she was unable to make an in-dock identification.

[133] The evidence of identification in this case included the following:

• Joseph Ense and Brian Jordan Ense were known to all civilian witnesses who testified, except perhaps for A.C., prior to these events.
• Adam Roy identified both Joseph Ense and Brian Jordan Ense in the courtroom.
• Adam Roy confirmed that Joseph Ense, Brian Jordan Ense, and B.R.N. were at Marshall Migwans' residence on the night in question.
• B.R.N. referred to the parties by name when she described the behaviour of each of them.
• As previously concluded by this court, Brian Jordan Ense is the source of DNA Profile 1 found on the skin swabs and underwear taken from B.R.N.

[134] Given this evidence, Joseph Ense and Brian Jordan Ense have been identified as the parties before the court. Further, B.R.N. has attributed certain behaviour to each of them by name. Having said that however, during the 911 call, B.R.N. seemed unsure who did what or whether Joseph Ense and/or Brian Jordan Ense were involved at all. The 911 call was referred to in some detail above. It is the view of this court that this may affect the reliability of B.R.N.'s evidence and will be discussed further below.

[135] If this court ultimately accepts the evidence of B.R.N. and Adam Roy with respect to identification, the court would conclude that identity has been proven in this case.

Credibility / Reliability

[136] In assessing the credibility of witnesses in this case, the court has considered, among other things, their power of observation, memory, the passage of time, any bias, partiality, or interest in the outcome, demeanour as they testified, the reasonableness of the evidence, inconsistencies within the evidence at trial as well as inconsistencies between the evidence at trial and statements to police, and additions to their evidence not previously mentioned.

[137] The court may accept some, none or all of a witness's evidence, and accord different weight to different parts of the evidence that is accepted: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 72; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44. A verdict of guilty may, in some cases, be properly rooted in the evidence of a single witness: Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at pp. 819-820. Credibility is a question of fact.

[138] Fairly recently, in the case of R. v. Williams, 2018 ONCA 138, MacPherson J.A. for the court stated as follows:

[33]…..In my view, a good summary of the relevant principles relating to the assessment of a witness' credibility is contained in R. v. A.M., 2014 ONCA 769 at paras. 12-14:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R. v. G.(M.) (1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[139] In considering the reliability of the evidence, the court must consider the accuracy of perception and memory, and factors that may have affected that, such as intoxication. Even the evidence of an honest witness may be of questionable reliability. See: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.)

[140] In summary, credibility concerns the veracity of a witness; reliability involves the accuracy of the witness's testimony. Credibility and reliability are distinct concepts and both must be considered in this case.

[141] Further, the case law is very clear that when making assessments of credibility and reliability the court must constantly keep in mind that people react differently. In R. v. A.R.J.D., 2018 SCC 6, the Supreme Court of Canada dismissed an appeal, substantially for the reasons of the majority of the Alberta Court of Appeal. In those reasons, the Court of Appeal had a lot to say about avoiding stereotypical thinking. In R. v. A.R.D., 2017 ABCA 23, the court stated in part as follows:

[44] Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.

[45] Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an "absence of evidence", the absence of evidence found here—no evidence of avoidance or change in behaviour—appears to be based solely on the trial judge's impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant's police statement or trial testimony. In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping, a point ably made by the Manitoba Court of Appeal in R v RGB, 2012 MBCA 5 at para 59, 287 CCC (3d) 463:

[57] "Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside": R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant's credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.

[58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. …

[60] "As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634": R v Mills, [1999] 3 SCR 668 at para 119. The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser's acquittal….

[142] In assessing the credibility and reliability of B.R.N., there were a number of areas pointed out by defence counsel as difficulties with her evidence, which will be addressed below:

(1) The defence suggested that there was a problem with respect to the way in which B.R.N. was prepared for trial. Specifically the defence pointed out that B.R.N. was shown the transcript of her police statement but was never shown the 911 call. It is the view of this court that the Crown can prepare its witness in any manner it sees fit. It is not for this court to question. This does not impact upon B.R.N.'s credibility or reliability.

(2) B.R.N. lied about her age to Jordan Ense because she did not want to get kicked out of the party. However, the age that she gave him was 17 years old as opposed to her true age of 16 years old. Defence counsel questioned why B.R.N. would lie in such a way, as the age that she provided was still under the legal age to drink and, further Jordan Ense was not the host of this party in any event. It is the view of this court that, given that B.R.N. was questioned about her age by Jordan Ense, it was reasonable that she would be concerned that Jordan Ense might have some power or persuasion to remove her from the party. Further, while the age that she provided was still under the legal age to drink, in the mind of B.R.N., this at least made her a year older and that made a difference to her. It is the view of this court that her response in this regard was reasonable.

(3) At trial, B.R.N. stated that the comments made by Jordan Ense regarding people in the Bronx and the possibility that when they drink someone might want to have sex with her, made her feel uncomfortable. However, she agreed that she never mentioned to the police that she was uncomfortable, but rather said that she was laughing and walked outside. It is the view of this court that this did not amount to an inconsistency. There was no suggestion in the passages read to B.R.N. in court that the police asked how this made her feel. She had admitted to laughing and walking outside both to the police and at trial. She confirmed again in cross-examination that it did in fact make her uncomfortable.

(4) Defence counsel suggested that there was some ambivalence regarding the 911 call as to whether she remembered the call or not. The only times that B.R.N. suggested that she remembered the 911 call was when she was asked the following:

Q: Okay do you recall being in a vehicle when someone called 911 for you?

A: Yeah, I was in – I was in my cousin's truck….sitting there…..Just me and my cousin was – had the door open standing right there.

Q: But you did tell C.B. and the 911 operator that you had been raped, correct?

A: Yeah

Any other questions asked about the conversation between her cousin and the 911 operator or comments that she made while the call was taking place, B.R.N. did not remember. With respect to the first question, it would appear that B.R.N. was remembering being in a vehicle, but not the call itself. With respect to the second question, B.R.N. is simply agreeing with the suggestion of defence counsel in cross-examination but right after this stated, "I don't know, I don't remember her calling. I remember the ambulance showing up." Considering these responses in the context of the questions asked, this does not amount to an inconsistency.

(5) B.R.N. was very unclear during the 911 call as to who did what to her, and in fact, indicated at one point that it was not Joseph Ense or Jordan Ense. This is certainly a material inconsistency. However, B.R.N. was very upset at the time and did not seem to be thinking clearly and logically. She was also still very intoxicated at this time. This will be addressed further below.

(6) The certainty of whether there was someone in the bathroom with her had improved since the police statement. This is not an inconsistency, as B.R.N. was convinced at the time of her statement that another male was in the bathroom with her and in fact she had indicated to the police that it was "Joe". Her improved memory cannot be seen as an inconsistency. The court does question how this memory has become so clear, however, this must be considered in the context of B.R.N.'s intoxicated and recovering state at the time of these events and the time of her police statement.

(7) B.R.N. admitted that she was really intoxicated. Specifically on a scale of 1 to 10, 1 being sober and 10 being near black out, she stated she was an 8 to 10. B.R.N. asserted that her memory was clouded by alcohol at the time and that her memory has improved since. She stated that on the night and within hours, she had very little recollection, but at trial was able to provide greater detail and certainty. This is her explanation for why she provided more details in her trial testimony, as compared to her police statement. Defence counsel asserted that there is no explanation for this recovered memory. Certainly her level of intoxication must be considered in the context of assessing her reliability, however, her response about remembering more details as time went on made sense in the context of her intoxicated and recovering state at the time of these events.

(8) B.R.N. testified at trial about events that occurred on the bed in the upstairs livingroom with Joseph Ense. B.R.N. did not tell the police about these events. This is not an inconsistency but is certainly new information that she had not mentioned to the police. This does cause the court to question her credibility.

(9) B.R.N. explained three different occasions when Joseph Ense was hugging her: 1) after she was done doing weights; 2) on the bed; and 3) when she was sitting in the computer chair on Facebook. She agreed that she told the police that "Joe was like trying to hug me, or something like that". It is the view of this court that this does not amount to an inconsistency, or at least not a material inconsistency.

(10) At trial, B.R.N. indicated that Joe was holding onto her coat as she went upstairs to use the bathroom and that "I asked S.L. to come with me because I felt uncomfortable….". She agreed that when she spoke to the police, she said "Um, I was just like 'kay, someone like, but didn't pay attention." She said nothing to the police about being uncomfortable. Again, there is no indication that she was asked how she felt by the police. This is not an inconsistency.

(11) B.R.N. told the police during her statement that when she was checking Facebook, that Joseph Ense tried to hug her and said "What if they find out that I like you and stuff". She remembered telling the officer that and remembered that happening. However, she agreed that this was not what she said in court. She agreed that there was no assertion by her to the police that Joseph had in fact hugged her, as opposed to tried to hug her. With respect to the comment attributed to Joseph Ense, she had not testified to this in court when she first described the events. It is the view of this court that this is not a material omission or inconsistency.

(12) In cross-examination it became apparent for the first time that there were two different times that someone was kissing her neck outside; one when Joseph and Jordan Ense were there and one where just Jordan Ense was there. It is the view of this court that this is not a material inconsistency. It was clear from her evidence in-chief that she originally went outside with Jordan Ense and that at some point Joseph Ense was also outside. Whether she went inside and came back out at some point is of little significance.

(13) With respect to someone getting her to touch their penis, she indicated at trial that she told the person to stop and then pulled her hand away. She agreed that when asked by the police whether she told the person to stop, she stated, "I don't remember". This is another example of B.R.N. having a better memory at trial, but does not amount to an inconsistency.

(14) B.R.N. testified at trial that Jordan Ense was having sexual intercourse with her while she was up against the truck in the driveway. In her police statement, when asked about any other sexual conduct beyond the kissing and asking to touch their penis, B.R.N. stated that she thought there was but she was unsure. When asked specifically about penetration, she had told the officer "no" and then "I don't remember". When questioned further, she indicated "They raped me". She stated that she was referring to Joseph and Jordan Ense. However, at the trial, she had no memory of being raped by Joseph Ense. This is the most significant omission and one that leads this court to question her credibility and her reliability. However, the DNA evidence provides some support for the fact that this occurred.

[143] Before summarizing the findings with respect to B.R.N.'s evidence, the court will make some brief comments about the testimony of Adam Roy. With respect to Adam Roy, other than identifying Jordan Ense and Joseph Ense in the courtroom, the court found him to be a somewhat reluctant and unhelpful witness. Further, Mr. Roy was never asked about the events outside the house as described by B.R.N. The fact that Adam Roy agreed that he witnessed Jordan Ense flirting with B.R.N. was irrelevant as the court was not told anything about what he witnessed and the court does not know what Mr. Roy considers to be flirtatious behaviour.

[144] Returning to B.R.N., there is no question that B.R.N. became frustrated during her testimony, especially during cross-examination. There were some minor inconsistencies between her police statement and her trial testimony. There was a more major inconsistency between the 911 recording and the trial testimony. More significantly, her evidence at trial provided details that had never been provided to the police. These factors can all be problematic both in the sense of credibility and reliability. It is the view of this court that most of the inconsistencies pointed out by defence counsel were very minor in nature or do not amount to inconsistencies at all. Inconsistencies on minor matters or insignificant details are expected in the remembering and retelling of any event. Further, many of the new pieces of information provided by B.R.N. at the trial were simply further minor details about matters which she had already generally talked about in her police statement.

[145] The most significant inconsistency is found between the 911 recording and her trial evidence. As previously indicated, the statements made by B.R.N. during the 911 recording demonstrated that she was unclear as to who did what to her. However, at one point during the recording, she does state, "I don't know who Joe – I don't know who his brother is, I don't know his name" and further "His – his brother came out, Joe and he – he always – he always wants to try, but I always tell him not to and then he tried to…." Therefore, while there are areas of inconsistency, this would appear to be, in some ways, consistent with B.R.N.'s trial testimony. As stated recently in the case of R. v. M.P., 2018 ONCA 608:

[77] As a general rule, prior consistent statements of a witness in a criminal case are inadmissible. They lack probative value. They are self-serving. They are easily fabricated. They are redundant. Their repetition before the trier of fact is capable of working significant prejudice: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 12; R. v. J. (M.A.), 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 45.

[78] Like other admissibility rules which are primarily exclusionary in their effect, the general rule enjoining introduction of prior consistent statements of a witness in a criminal case brooks exception: Stirling, at para. 5; J.(M.A.), at para. 46. These exceptions permit introduction of prior consistent statements for restricted purposes which differ depending on the exception: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 27. To rebut a claim of recent fabrication: Stirling, at paras. 5 and 7; R. v. Evans, [1993] 2 S.C.R. 629, at p. 643. As narrative: R. v. F.(J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476; Khan, at paras. 29-30. And to provide context in which to assess attacks on testimonial reliability based on alleged prior inconsistencies: R. v. O.(L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 34.

[79] Where a prior consistent statement has been admitted as an exception to the exclusionary rule, a trial judge is generally required to instruct the jury about the use that they must not make of this evidence, as well as any use which is permissible: Demetrius, at para. 21; J.(M.A.) at para. 47. The prohibition is against use of the statement as proof of the truth of its contents: J.(M.A.), at para. 47; F(J.E.), at p. 476. The permitted use varies with the particular exception engaged.

B.R.N. was extremely upset and intoxicated during the 911 recording. The 911 recording is full of confusion which is understandable given B.R.N.'s intoxicated state and what has just happened to her. While there are some examples of inconsistency between the 911 recording and the trial evidence, there are some examples of consistency. The court has considered the consistent aspects of the 911 recording in the context of the direction given by the court as set out above in R. v. M.P.

[146] The two most significant areas that were added during the trial which were not in the police statement were the events alleged to have taken place on the bed, and even more significantly, the events that were alleged to have occurred at the truck, specifically, the sexual intercourse. At the time of the police statement, B.R.N. seemed to believe that something else had occurred but she was unsure. The memory problems are relevant to reliability as well as credibility. Clearly B.R.N. was quite intoxicated at the time of these events, which may have clouded her memory. As time went on, she seems to have been able to remember more and more events of that night.

[147] Having carefully considered B.R.N.'s evidence, in the context of all of the other evidence in this case, this court finds her evidence to be credible and reliable.

Conclusion

[148] After a complete review and consideration of the totality of the evidence, this court does believe the evidence of B.R.N. that she was sexually assaulted by Brian Jordan Ense. In summary:

(1) B.R.N. was forthright about her ability or inability to perceive and remember the events being affected by her level of intoxication.

(2) Many of the so-called inconsistencies suggested by defence counsel are very minor in nature, and some do not amount to an inconsistency at all. The more significant inconsistency, being the statements made during the 911 recording, must be considered in the context of B.R.N.'s state of mind and condition at the time, as well as in the context of other comments that she made during that 911 recording.

(3) The more significant differences between B.R.N.'s police statement and her trial testimony are where she failed to mention something to the police as opposed to her saying something different about the event on an earlier occasion. These omissions must be considered in the context of B.R.N.'s evidence that she was intoxicated at the time of these events, she was very tired when she gave her statement to the police, and her memory of these events has improved since that night.

(4) B.R.N.'s evidence about her pants and underwear being down and Jordan Ense having sexual intercourse with her was supported by the DNA evidence, specifically that Brian Jordan Ense could not be excluded as the source of the DNA profile (likely saliva) analyzed from the front panel of B.R.N.'s underwear and the estimation of the probability that a randomly selected individual unrelated to the person in question would coincidentally share the observed DNA profile was 1 in 45 trillion. While the DNA profile found on her neck is less significant given Ronald Lai's evidence as to how it could be deposited there, the court finds the DNA profile in the underwear much more compelling. Even though innocuous transfer of this DNA to the underwear is possible, the court finds this piece of evidence to be strong support for B.R.N.'s version of events.

(5) B.R.N.'s demeanour immediately after she left this party, as described by A.C. and C.B., suggested that something very traumatic happened to B.R.N. at that party.

[149] The events as described by B.R.N. certainly amount to a sexual assault. Brian Jordan Ense was kissing her neck and more significantly had sexual intercourse with B.R.N. All of this was done without her consent. In addition to these acts, either Brian Jordan Ense or Joseph Ense attempted to have B.R.N. touch their penis, while both men stood very close to her at the truck. This was also without the consent of B.R.N. On the totality of the evidence, I am convinced beyond a reasonable doubt that B.R.N. was sexually assaulted by Brian Jordan Ense.

[150] The court finds Brian Jordan Ense guilty of sexual assault.

Released: July 17, 2018

Signed: Justice V. Christie