Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 11 29 COURT FILE No.: Brampton 3111 998 19 2492

BETWEEN:

HIS MAJESTY THE KING

— AND —

D’ANDRE DIXON

Before: Justice G.P. Renwick

Heard on: 15, 16 March and 23, 24 November 2022 Reasons for Judgment released on: 29 November 2022

Counsel: N. Sohail, counsel for the Crown K. Sharma, counsel for the Defendant D’Andre Dixon

REASONS FOR JUDGMENT

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with a robbery of a sex-trade worker. The complainant was robbed at knife-point after performing sexual services for someone previously unknown to her. The Defendant’s deoxyribonucleic acid (“DNA”) was found on the complainant. There was almost no other identification evidence adduced during the trial.

[2] The complainant, a police officer, and a forensic biologist testified for the prosecution. The Defendant led no evidence on the trial.

[3] The trial was focussed, brief, and it took place over several days spread apart. The only issue is whether it is proven beyond a reasonable doubt that the perpetrator of the robbery is the Defendant.

[4] For the reasons that follow, the Defendant is acquitted.

GOVERNING LEGAL PRINCIPLES

[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven, by admissible evidence, beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.

[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [^1]

[7] If after considering all of the admissible evidence I am sure that a defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[8] This case involves circumstantial evidence. The Defendant’s DNA is found on the complainant’s face. This evidence is relied upon to bolster the extremely weak identification evidence admitted to prove that the Defendant was the culprit of the robbery.

[9] In order to be satisfied that the Defendant was the alleged robber, beyond a reasonable doubt, I must be satisfied that this is the only reasonable inference available in respect of the circumstantial evidence. [^2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that individual circumstantial pieces of evidence may be insufficient on their own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its high burden.

[10] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[11] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and several opportunities during the trial and subsequent to its completion to review my notes, to review the exhibits, and to review parts of the digital audio record of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony or evidence received during the trial until all of the closing submissions were made, and my review of the evidence and submissions was complete.

THE EVIDENCE AND FINDINGS

[12] The complainant testified about performing sex-trade work on the night in question. She received a phone call to the phone number she uses in advertising for sexual services. At the time of the phone call, the complainant had been spending time with two female friends since early evening. The complainant did not want her friends to know what she was going to do. She left and met her customer at the front of her motel. The complainant described driving into a neighbouring parking lot, which turned out to be behind another motel.

[13] During the transaction, the suspect asked if he could “finish” on the complainant’s face. She agreed. He got out of the driver’s seat, walked over to the complainant on the passenger side and did so. He told her to get some wipes for her face from the back of the car. He returned to the driver’s side, took the $100 which he had agreed to pay for the sexual service off of the dashboard and produced a small knife. The complainant described trying to grab the suspect’s phone unsuccessfully as her assailant made stabbing motions in order to keep her from re-entering the front passenger seat. Eventually, the male drove away with the front passenger door open. The open car door struck the complainant’s friend, “Cassidy” who seemed to arrive at this adjacent parking lot around the time of the robbery. Cassidy gave the complainant her hoody to wipe the ejaculate from her face. The police were called and eventually the complainant’s face was swabbed for DNA.

[14] During the trial, the complainant described her assailant: male, black, large, approximately her height, short hair, no distinguishing marks, tattoos, or scars, in his 30’s. His voice was “nasally,” he stuttered, and he drove a small, gray, four-door, older car. The complainant pointed to the Defendant when asked if she could identify her attacker in court. The complainant also testified that in addition to losing the money for the sexual service, she was robbed of $350 that must have been taken by the male from her left sweater pocket when she was distracted during the sexual service.

[15] As a witness, the complainant was credible. She appeared earnest and her account was entirely plausible. The complainant’s account was largely unchallenged by cross-examination.

[16] The greater concern, however, is the complainant’s reliability. No out of court identification procedure (for example, a photo-line up) was ever conducted. The events she recounted are almost four years prior. The complainant was unable to give any distinctive description of her assailant besides his voice. For much of the 15-30 minutes of time that the complainant spent with the male who robbed her she was not looking at his face. He was unknown to her. She is a white person. The male was non-white. The complainant first testified that she did not remember if the male had facial hair. When the trial resumed eight months later, while still testifying in chief, the complainant believed that the male had some facial hair.

[17] I am mindful that cross-racial identifications are especially problematic because people may be unaware of their own biases or racial blind-spots.

[18] I find that the in-court identification is also significantly compromised. The Defendant was the only black male in the courtroom. When the trial began the Defendant was initially sitting beside his lawyer. On the recent continuation date, he was seated in the prisoner’s dock.

[19] While I accept the complainant’s version of events and her honesty I am unable to place much weight in the reliability of this evidence.

[20] Constable Kevin Chan testified about his brief involvement in this investigation. He took the complainant’s initial complaint. He eventually located a hoody, which may have been discarded by Cassidy after the complainant had wiped her face. The provenance of the sweater the officer found is unknown because it was never forensically tested or linked in any way to Cassidy or the complainant.

[21] Ms. Nicole Vachon was the last witness who testified. She was qualified as an expert witness on consent. I permitted the forensic biologist to opine on four areas: i. the examination of items for the presence of blood, semen, and saliva; ii. bodily fluid identification and the preparation of forensic reports; iii. DNA analysis and interpretation; and iv. the deposition, transfer, and persistence of bodily fluids and DNA.

[22] The biologist testified that of the many items initially sent to the Centre of Forensic Sciences for testing in this case, the only item that was analyzed was the swab taken from the complainant’s face. Ms. Vachon testified that the swab was tested to see if a male profile (DNA from a male) could be determined. Once a DNA profile was generated, and male DNA was found, no other item was tested.

[23] The swab that was tested contained a mixture of DNA from at least three people: one was the complainant; one was from a male; and the last portion of DNA that was present on the swab was not suitable for analysis. It was also unknown whether the last part of the DNA mixture was from a male or female contributor.

[24] The unknown male DNA was present in a greater quantity than the DNA of the complainant or the unsuitable DNA. The witness could also say that the amount of DNA discovered in the mixture was reflective of the amount of DNA on the swab.

[25] Ms. Vachon also testified that eventually a second comparison sample of DNA [^3] was submitted in this case. The second comparison sample came from the Defendant. A profile of the Defendant’s DNA was generated and it was compared to the unknown male DNA that appeared in the greatest quantity in the DNA mixture found in the swab of the complainant’s face.

[26] Ms. Vachon testified that it was greater than one trillion times more likely that the DNA found in the mixture from the swab of the complainant’s face related to the Defendant than to someone other than him. [^4]

[27] The witness provided some limitations during her testimony. First, it is not possible to determine the mechanism of introduction of the Defendant’s DNA into the mixture found in the swab from the complainant’s face. It was also present for an indeterminate period of time. The DNA was not analyzed for its source, meaning the Defendant’s DNA could have come from semen, another bodily fluid (sweat, mucous, blood, or saliva), or another cellular source (skin cells, for instance). At the time of examination of the facial sample swab it was noted that it was grayish-beige in colour and there was no red staining. The witness testified that this may be an indication that the source of the Defendant’s DNA was not blood. [^5] It was also unknown whether the Defendant’s DNA had been directly deposited onto the complainant’s face or indirectly transferred from another source.

[28] As an illustration of DNA transfer, Ms. Vachon spoke of the transfer of her DNA onto a table by having touched the table. If she touched the table multiple times, her DNA could accumulate in a greater amount on the table. If she touched something which came in contact with the table, that could also introduce her DNA onto the table indirectly.

[29] In cross-examination, Ms. Vachon confirmed that she could not tell how long the Defendant’s DNA was present on the complainant’s face, nor the mechanism of deposit or transfer (direct or indirect), nor the source (bodily fluid or other cells).

[30] When asked a hypothetical about the possibility that Cassidy’s sweater contained the Defendant’s DNA and when the complainant wiped the ejaculate of her assailant with the sweater she transferred the Defendant’s DNA to her face, the witness testified that it was possible to transfer DNA from the complainant’s face to the sweater and from the sweater to the face, but there would have to be enough DNA on the sweater to transfer back to the complainant’s face and it would likely have to be wet to transfer back onto the face given that the semen would be wet and it was a rich source of DNA.

[31] In a follow-up answer, the witness agreed that it would be possible if there were a large volume of skin cells on the sweater that they could have transferred to the complainant’s face. Also, given the DNA results in this case (a mixture of DNA from three contributors, where the Defendant’s DNA was in a greater amount than the complainant’s DNA or the unknown contributor), the witness would expect to see the results obtained in the face swab if the sweater contained a wet fluid source of the Defendant’s DNA.

[32] Lastly, Ms. Vachon could not exclude the possibility that the Defendant’s DNA came from a dry source (skin cells, dried mucous, etc.), but she would expect there to have been a large source of DNA given the results obtained.

ANALYSIS

[33] This is a case with direct and circumstantial evidence of identity. Neither, on its own, makes a compelling case for conviction. Even together, the totality of evidence cannot extinguish a reasonable doubt.

[34] The only direct evidence that implicates the Defendant as the perpetrator of the robbery is testimony of the complainant. The complainant’s testimony included a generic description of her perpetrator, and an in-dock identification. This evidence is inherently unreliable, although the complainant was entirely credible.

[35] The only circumstantial evidence implicating the Defendant is the DNA mixture, of which his DNA was the major source, found in the swab taken from the complainant’s face. It is unknown how the Defendant’s DNA came to be on the complainant’s face, the source of his DNA (bodily fluid or other cells), how long his DNA had been on the complainant’s face, [^6] and whether the unknown DNA (which was unsuitable for analysis) came from the complainant’s assailant or someone else.

[36] In terms of possible scenarios, only two arise on the evidence: i. The Defendant is not the perpetrator of the alleged robbery; the complainant is mistaken in her identification of the Defendant; and it is unknown how his DNA came to be on the complainant’s face; and ii. The Defendant is the perpetrator of the alleged robbery – this explains both the in-dock identification and the presence of his DNA on the complainant’s face.

[37] Several points bear consideration.

[38] First, though the complainant gave a very generic description of the robber, the Defendant cannot be excluded as the male who committed the robbery: he matched the general description given by the complainant, except for his hairstyle, which was longer and braided at trial.

[39] Second, the generic description given by the complainant failed to account for a fairly obvious readily distinguishable feature of the Defendant: he has noticeable dark lines or “bags” under his eyes.

[40] Third, the complainant alluded to the Defendant’s body-type (“large” and “larger”). It is likely that she was describing his body-type rather than his height because when the complainant first gave this description she said, “I’m not trying to be rude.”

[41] Fourth, there was no evidence tying the complainant’s generic description of the robber to the Defendant beyond gender, race, and general age: there was no evidence respecting the Defendant’s voice (is it “nasally,” does he “stutter”), his height (is he approximately 5’ 9”), or whether he is associated to an older, gray, four-door compact car.

[42] Fifth, there is a gap in the evidence respecting possible contact between Cassidy and the Defendant (which may explain/preclude the presence of his DNA on her sweater).

[43] Sixth, it is unknown whether the source of the Defendant’s DNA on the swab from the complainant’s face was semen, another bodily fluid, or other cells.

[44] The prosecution must prove the Defendant’s guilt beyond a reasonable doubt, which in a circumstantial case includes the additional burden of excluding all rational conclusions alternative to guilt.

[45] In R. v. Paul, [1977] 1 S.C.R. 181, our Supreme Court held that: the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt [does not include] the added burden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused. [^7] This means that a defendant may advance alternative inferences, but they “must be reasonable, not just possible.” [^8]

[46] In this case, there are too many unknowns to be satisfied that the only reasonable inference is that the Defendant is the alleged robber. The competing inference, that his DNA is not from semen and it was transferred to the complainant’s face indirectly is equally consistent with the entirety of the evidence. The actual robber could be a large black male who is not the Defendant.

[47] It is unknown why or how the Defendant’s DNA came to be on the complainant’s face, but without knowing whether the Defendant’s DNA was from a bodily fluid, and in light of the presence of a third unknown person’s DNA, it is improper to infer that the direct testimony supports the circumstantial evidence to the exclusion of other reasonable possibilities and the circumstantial evidence exclusively bolsters an inference of guilt.

CONCLUSION

[48] I am not satisfied that it is proven that the Defendant is the male who robbed the complainant at knife-point. There are too many unknowns to be satisfied that this is the only reasonable inference to be drawn from the entire evidential landscape. As well, the direct evidence is too weak, even with the circumstantial evidence, to prove guilt.

[49] Accordingly, the Defendant, D’Andre Dixon, is acquitted of the robbery charge.

Released: 29 November 2022 Justice G. Paul Renwick

Footnotes

[^1]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [^2]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56. [^3]: The complainant’s DNA was the first comparison sample received. [^4]: For the sake of simplicity, I will refer to the DNA for which the Defendant cannot be excluded as a contributor with a likelihood of greater than one trillion times that it was not from someone else as the “Defendant’s DNA.” In closing submissions both parties used this nomenclature as well. [^5]: There was a qualification to this evidence because in small quantities red staining was not necessarily likely to be observed. [^6]: The evidence did not establish when the complainant had last washed her face before the robbery. [^7]: , [1977] 1 S.C.R. 181 at p. 191. This statement of the law is expressly confirmed in Villaroman, supra, at para. 50. [^8]: Villaroman, supra, at paras. 35 and 42.