Non-Publication and Non-Broadcast Order 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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.
DATE: January 15, 2021
ONTARIO COURT OF JUSTICE Old City Hall - Toronto
BETWEEN: HER MAJESTY THE QUEEN — AND — BABA OUEDRAOGO
For the Crown: B. McCallum For the Defendant: K. Bailey Heard: December 7, 8, 9 and 11, 2020
REASONS for JUDGMENT
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] At approximately 2:30 am on Tuesday, July 30, 2019, B.H. was asleep on a park bench in the McGill parkette near the intersection of College and Yonge in Toronto. They (B.H. prefers a gender-neutral pronoun) were suddenly viciously attacked by a masked man wielding a chunk of concrete. He struck them with the weapon several times and sexually assaulted them while they were on the ground. He stole their backpack and ran off.
[2] Mr. Ouedraogo is alleged to have committed this offence. The only issue I must decide is whether the Crown has proven beyond a reasonable doubt that he is indeed the attacker.
[3] Much of the attack, the assailant’s activities before the attack and the assailant’s flight from the scene, were captured on CCTV at various locations.
[4] A man, who Mr. Ouedraogo admits is himself, is captured on CCTV around the same location shortly after the attack.
[5] B.H. testified and was not able to identify their assailant but did provide the police and the court with a limited description of the assailant.
[6] Mr. Ouedraogo was arrested in November of 2019 and charged with sexual assault with a weapon, robbery and other associated offences. He provided a taped audio statement to the police which was admitted by Ms. Bailey, counsel for the defence, as voluntary and was made an exhibit in the Crown’s case.
[7] Ms. McCallum also played and filed numerous relevant segments of CCTV video and screen grabs, as well as other medical and forensic documents that turned out not to be particularly significant to my decision.
[8] Ms. McCallum also brought a similar act application regarding another sexual assault committed in November 2019. That application was dismissed for reasons I shall set out below.
[9] Mr. Ouedraogo called one witness who was nearby when the assault occurred and had a limited opportunity to see the assailant.
[10] No one has directly identified Mr. Ouedraogo as the assailant. The evidence against him is circumstantial and essentially consists of B.H.’s description, and a comparison of the various video clips of the assailant with video clips of Mr. Ouedraogo captured nearby after the assault.
[11] Mr. Ouedraogo did not testify, but he adamantly denied committing the offence when questioned by police, and I must consider his denial pursuant to the law set out by the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 377, [1991] S.C.J. No. 26, which I shall expand upon below.
B. THE EVIDENCE
(a) B.H.’s description
[12] B.H. was subjected to significant violence and was quite shaken as they testified. Yet, their description of their assailant, as far as it goes, was given with relative clarity. There is no suggestion that B.H. was intoxicated at the time of the assault.
[13] B.H. saw a black man who was approximately 5’8”, with a thick Jamaican or African accent, approach with a large white pitted rock. He told them to shut up or he would kill them. He then struck them with the rock and threw them to the ground. He pulled down B.H.’s pants as well as his own and tried to penetrate B.H. from behind. The sexual assault did not last long, and the assailant ran off with B.H.’s black Jansport backpack.
[14] B.H. described their assailant as wearing dark clothing and a backpack. All they could see was his eyes because he wore an orange, yellow or red bandana over the bottom of his face and a dark beanie or hoody over his head.
[15] The rock that the assailant used was found by police and photographed. It is in fact a piece of broken concrete that closely matches B.H.’s description.
(b) The videos of the assailant
[16] The McGill parkette where this attack took place is well covered with CCTV, as are the adjoining streets and public places. Police collected various video clips that show the attack, as well as the assailant milling about near the parkette in the minutes leading up to the attack. Other clips show the assailant fleeing the parkette and running with the two backpacks. Some of the video is in colour and some is not.
[17] A man that Ms. Bailey concedes is the assailant is seen running through an alley towards the south side of Carlton Street shortly after the attack.
[18] Ms. Bailey concedes that the various videos of the assailant taken before, during and after the attack demonstrate that he was black, wore dark pants with three white stripes running down the outside of each leg (Adidas, or Adidas knock-offs), dark shoes with white laces, a red or orange short-sleeve top and a yellow cloth covering the top of his head. She further concedes that he also wore some type of cloth over the lower portion of his face, the colour of which is not captured. He had a backpack on his back and ran off with it in place and B.H.’s backpack in his arms. He is a cigarette smoker.
[19] Ms. Bailey also concedes that the assailant is seen running from the scene of the attack northbound through an alley from Granby Street towards Carlton Street.
(c) The videos of Mr. Ouedraogo
[20] As is clear from Mr. Ouedraogo’s statement to police, and from Ms. Bailey’s further concessions, CCTV captures Mr. Ouedraogo shortly after the assailant is seen running through the alley. Mr. Ouedraogo is seen on the north side of Carleton, several meters east of where the alley lets out to Carleton. He is seen running east. He runs towards Church Street, turns left and then crosses Church Street. He runs north to Wood Street and then turns right and continues to Mutual Street. Ms. Bailey concedes that the video of Mr. Ouedraogo clearly demonstrates that he is black, wearing a red short-sleeved top, dark pants with three stripes down the outside of each leg, and black shoes with white laces. He is wearing a backpack and carrying another one. He is also carrying a yellow cloth.
[21] He is last seen on CCTV video stashing his red shirt and two cloths under a car on Mutual Street. Police recovered these items and the two cloths turned out to be a red bandana and a knotted yellow bandana. DNA consistent with Mr. Ouedraogo’s DNA was found on the shirt and the red bandana.
[22] The audio statement taken provided by Mr. Ouedraogo demonstrates that he has a thick African accent.
(d) The evidence of Bryon Richard and the 911 call
[23] Bryon Richard was working at a music studio close to the McGill parkette and was outside on a break when he heard a scream. He approached the parkette and saw the tail end of the assault. He got within approximately 10 meters of the assailant.
[24] After the assailant had run off, Mr. Richard helped escort B.H. to Covenant House, a nearby shelter, and stood nearby as a security guard at Covenant House named Mike called 911.
[25] Mr. Richard testified that his current recollection is not very good, but that whatever he told police on the 911 call was correct. Thus, as the Court of Appeal has said is appropriate, Ms. Bailey and Ms. McCallum agree that the most reliable source for Mr. Richard’s description of the assailant is what he said to the 911 operator shortly after the assault: R. v. Tat, (1997) 35 O.R. (3d) 641 (C.A.). He never spoke to the 911 operator directly, but he can be overheard describing the assailant as 6 feet tall, in his 20’s or 30’s, wearing sunglasses, a bandana and an orange and black shiny tiger stripe top with a hood.
[26] Mr. Richard testified that he did not get a clear look at the assailant and that he was extremely intoxicated that night, having ingested what he described as “shatter, moonrocks, pot, crystal meth, and most of a 26-ounce bottle of Jack Daniels”. When asked if his ability to observe was impaired that night he said, “to say the least”.
(e) Mr. Ouedraogo’s statement to police
[27] Mr. Ouedraogo was interviewed by officers Westerhoff and Adam at a local detention center on February 25, 2020, seven months after the attack on B.H. He was 26 years old at the time of the interview.
[28] Mr. Ouedraogo was given the opportunity to speak to his lawyer before speaking to the police and he availed himself of that opportunity. The interview is over two hours long and was audiotaped. A transcript was prepared by the police. Both the audio and the transcript were made exhibits during the Crown’s case.
[29] When told that the police were investigating him for a sexual assault and a robbery with disguise in July 2019 Mr. Ouedraogo told them he did not know what incident they were referring to.
[30] Mr. Ouedraogo told police that he was originally from Montreal where he had obtained a bachelor’s degree in Economics and Finance from the University of Quebec. His first language is French, having been born in Burkina Faso in West Africa. He began learning English when he moved to Toronto in 2013. Mr. Ouedraogo’s English is quite good. He had no trouble understanding the officers who spoke to him in English and he had no trouble expressing himself in English. (A French interpreter was made available to him at the trial, but he did not use his services during the trial.)
[31] At or around the time of the attack Mr. Ouedraogo was frequenting Covenant House near the McGill parkette, although he was not living there. He denied ever being there or near there at night, although he said he did spend some time at night near Ryerson University, which was only about a block away. He denied ever being in the McGill parkette after dark. He admitted that he is a cigarette smoker.
[32] When asked if he ever owned a red shirt, he said that he did and claimed to either not know where it was, or that it was in a locker somewhere.
[33] Mr. Ouedraogo readily identified himself in video clips as the man shown running east along Carlton, then north on Church. He said he didn’t recall what he was doing there that night. When asked again specifically about the shirt he was wearing that night he said that he still has it.
[34] At one point, while being shown portions of the video that show him fleeing, Mr. Ouedraogo recalled for the police that he was selling weed that night and while dealing with a man named “Scarborough” at Yonge and Carlton he stole Scarborough’s backpack and ran off with it. Just before being shown an image of his red shirt under the car Mr. Ouedraogo continued to maintain that he still had it. When shown the items found under the car, he admitted to throwing his shirt there as well as a yellow bandana that he said he got from Scarborough’s backpack along with a red bandana. He further admitted to earlier wearing the red one on his face.
[35] Towards the end of the interview, when shown images of the assailant, Mr. Ouedraogo denied that it was him.
C. ANALYSIS
(a) Introduction
[36] Even though Mr. Ouedraogo did not testify, his statement to police wherein he denied committing the attack on B.H., along with the evidence of Mr. Richard, which if accurate tends to exonerate Mr. Ouedraogo, must be approached in the manner prescribed by the Supreme Court in a line of authority starting with R. v. W.D., [1991] 1 S.C.R. 377, supra.
[37] First, Mr. Ouedraogo is presumed innocent and the burden of proof is on the prosecution throughout. To secure a conviction, the Crown must prove the allegations against Mr. Ouedraogo beyond a reasonable doubt.
[38] Second, if I believe Mr. Ouedraogo’s denial, I must of course find him not guilty. Even if I do not believe him, his denial alone, or in conjunction with supporting evidence may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. If it does not, Mr. Ouedraogo must be acquitted. If it does, he must be found guilty.
(a) Mr. Richard’s evidence
[39] Mr. Richard’s evidence is of almost no value. While Mr. Richard was and continues to be well-meaning, his level of intoxication on the night of the attack was so great as to render his observations unreliable. Moreover, his report of the assailant wearing sunglasses and a tiger pattern (the two observations that could exonerate Mr. Ouedraogo) are both in conflict with the video clips that show the assailant with a solid-coloured shirt and no indication of sunglasses.
[40] I do not accept Mr. Richard’s evidence, nor does it raise a reasonable doubt in the context of all the evidence.
(b) Mr. Ouedraogo’s statement and the circumstantial evidence
[41] When evaluating the statement, it must be borne in mind that it is neither under oath, nor tested by cross-examination.
[42] I do not accept Mr. Ouedraogo’s statement. Nor do I find that it raises a reasonable doubt.
[43] First, I do not believe that he did not remember throwing his red shirt under the car when asked about it. While that assertion might have been believable when he was first asked about the shirt prior to being directed to the video of him running along Carlton Street, that assertion is not credible once he was directed to the videos and he purported to recall his encounter with “Scarborough”. Throwing the shirt away is not something he would have forgotten.
[44] Secondly, and more important, is the fact that his innocent explanation is at odds with the overwhelming body of circumstantial evidence pointing to his guilt. Both the assailant and Mr. Ouedraogo wore Adidas-like pants, a red or orange short sleeved shirt, wore a yellow bandana and another bandana, had black shoes with white laces, carried two backpacks, smoked cigarettes and spoke with an African accent. Both were seen running away from something that night. Mr. Ouedraogo was clearly trying to hide his identity by discarding his clothing.
[45] That two almost identically dressed African men committed separate crimes in the same area at 2 am on a weeknight, each resulting in the two men running away with two bandanas and two backpacks cannot reasonably be explained by coincidence.
[46] Turning again to the body of circumstantial evidence, I must only convict Mr. Ouedraogo if I am convinced that the inference of guilt drawn from circumstantial evidence is the only reasonable inference that such evidence permits. Put another way, if there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. Moreover, these innocent inferences need not be based on proven facts: R. v. Villaroman, [2016] 1 S.C.R. 681, at paras. 30 – 37.
[47] As explained above, the circumstantial evidence implicating Mr. Ouedraogo in the attack on B.H. is overwhelming. Not only does it lead me to reject Mr. Ouedraogo’s explanation, it also leaves me convinced that there are no reasonable scenarios that could account for the evidence other than Mr. Ouedraogo’s guilt.
D. THE SIMILAR ACT EVIDENCE
[48] Given my findings on the evidence presented, my reasons for excluding the similar act evidence can be brief.
[49] Ms. McCallum urged me to admit the evidence of a complainant on another sexual assault allegation against Mr. Ouedraogo. That complainant alleges that Mr. Ouedraogo had non-consensual, vaginal intercourse with her several months later, in a stairwell not far from the McGill parkette. Her allegations do not involve the use of a weapon.
[50] Applying the law as set out in R. v. Handy, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57 and R. v. Kanthasamy, 2020 ONCA 25, I ruled against its admissibility. In my opinion, it cannot be said that the two acts were likely committed by the same person. What’s more, the proposed similar act evidence lacks strength. The complainant’s evidence is riddled with inconsistencies and is contradicted in large measure by other, objective video evidence. The prejudice associated with admitting the evidence far outweighs its probative value.
E. CONCLUSION
[51] In the result I find Mr. Ouedraogo guilty of all counts on the information.
Released on January 15, 2021
Justice Russell Silverstein