WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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.

DATE: July 28, 2023 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

BEVIN KERRY DEGALE

Before: Justice T. Lipson

Reasons for Judgment released on July 28, 2023

Counsel: Ms. E. Loignon-Giroux ............................................................................................ for the Crown Mr. N. Lust ............................................................................ for the accused Bevin Kerry Degale

Lipson J.:

REASONS FOR JUDGMENT

Overview

[1] Bevin Kerry Degale entered pleas of not guilty to charges of aggravated sexual assault and assault. The assault charge was dismissed after a non-suit motion at the conclusion of the Crown’s case.

[2] The Crown alleges that Mr. Degale committed an aggravated sexual assault against his then girlfriend J.K. on December 8, 2021.

[3] The Court was advised that J.K. evaded service of a subpoena requiring her to attend court and give evidence. She did not testify. From the outset of the police investigation into these allegations, J.K. was clear that she had no interest in seeing Mr. Degale charged or prosecuted for the alleged sexual assault.

[4] The Crown applied to have admitted in evidence several statements made by J.K. to witnesses, including police officers. After a blended voir dire, the Court admitted res gestae hearsay statements by J.K., brief in nature, to two witnesses named Mary Friesen and Luna Ferguson. The Court also admitted two utterances made by J.K. to one of the police officers who responded to a 911 call on the night of the incident. J.K. would later provide detectives with an oral and detailed account of the alleged sexual assault. For reasons set out R. v. Degale, 2023 ONCJ 152, that statement was ruled to be inadmissible hearsay.

[5] The Crown alleges that Mr. Degale committed an aggravated sexual assault on J.K. on December 8, 2021. Mr. Degale and J.K. were involved in an intimate relationship at the time. The offence is said to have occurred while the two were engaging in sexual activity in a van owned by Mr. Degale’s brother. At the time of the incident, the van was parked behind Mr. Degale’s residence at 1310 McWatters Road in Ottawa. Mr. Degale was living at this address at the time in apartment 211 with his brother Curtis, his sister-in-law Luna Ferguson and their children.

[6] The prosecution of this case proceeded without testimony from the complainant as to the circumstances of the alleged sexual assault. Instead, the Crown presented a circumstantial case involving admissible hearsay utterances made by the complainant to others as well as physical, medical and forensic evidence.

Summary of Evidence

(a) Testimonial evidence

Mary Friesen

[7] Ms. Friesen resided in apartment 209 at 1310 McWatters Road. At approximately 10 p.m., she heard a knock on her door. Upon answering the door, she saw J.K. who was crying “really hard”. J.K. said “Someone is trying to kill me”. Ms. Friesen offered to call the police and J.K. said “no”. Ms. Friesen did call the police who arrived approximately 10 minutes later. Ms. Friesen did not see J.K. again.

Luna Ferguson

[8] Ms. Ferguson resided at apartment 211. She lived with her husband, Curtis who is the brother of the accused, their five children and the accused. Ms. Ferguson testified that she saw the accused almost every day for several months, including the day before December 8, 2021. Her husband Curtis owned a gray Dodge Caravan van that he parked either outside the building or inside in a parking spot. She testified that the accused was using the vehicle for work. Her husband did not allow anyone else to drive this vehicle. She knew J.K. to be Mr. Degale’s girlfriend and had met her several times before December 8, 2021. Ms. Ferguson last saw her in the fall of 2021. She knew that J.K. was studying in another province.

[9] On December 8, 2021, Ms. Ferguson heard a constant rapping at her apartment door. Upon answering the door, Ms. Ferguson observed J.K. at the doorway, crying, with blood all over her lower body. She described J.K. as “scared, crying, frantic” and looked “a total mess” which contrasted with her typical appearance as seen by Ms. Ferguson. J.K. was barefoot and naked from waist down. Ms. Ferguson observed blood running down J.K.’s legs from the vaginal area.

[10] Ms. Ferguson asked her what happened. J.K. told her that Kerry had raped her. Ms. Ferguson then immediately ushered J.K. to the bathroom as she did not want her children to see J.K. in that state and told her to shower. J.K. was crying and apologizing.

[11] Police arrived at the apartment shortly after and took J.K. to the hospital.

Cst. Darling

[12] On December 8, 2021, Cst. Darling was dispatched to 1310 McWatters Rd, unit 209 in response to the 911 call. She arrived on scene at 9:55 p.m. and proceeded to unit 209, where she and Cst. Dort met with Ms. Friesen. No one else appeared to be on the scene. An initial search of the nearby hallway did not yield many results, save for observations of blood in the garbage chute room. The officers left the building.

[13] Upon re-entering the building, Cst. Darling observed wet bare footprints in the stairway from the door exiting to the outside of the building and going up the stairs. It had snowed that night and the footprints appeared recent. Some of the footprints had a brown/red tinge in them. Cst. Darling retraced the footprints down the stairs, out the door and in the parking lot to a Dodge Caravan in the nearby parking lot.

[14] Cst. Darling observed a suitcase in the backseat of the van and a large red stain on the front passenger seat covering the entire seat. Cst. Darling and Cst. Dort queried the van’s licence plate, which was registered to Curtis Degale at 211-1310 McWatters Rd. in Ottawa.

[15] Cst. Darling and Cst. Dort made their way back into the building and to unit 211 to perform a door knock. Upon arriving, they were told an injured person was in the bathroom.

[16] Cst. Darling knocked on the bathroom door and asked J.K. if she could come in. J.K. had recently gotten out of the shower and matched the description provided by Ms. Friesen.

[17] Cst. Darling explained that police had found blood in different areas and asked her where the blood was coming from, to which J.K. motioned towards her vaginal area. Cst. Darling also asked J.K. where the assault had happened, to which J.K. responded “in a van”. Cst. Darling and Cst. Dort conducted safety planning and eventually escorted J.K. to the hospital. Throughout this interaction, Cst. Darling described J.K. as moving very slowly.

Cst. Dort

[18] This officer’s evidence largely coincided with that of Cst. Darling, with the following additions: Upon arriving at the building, after the conversation with Ms. Friesen, Cst. Dort observed a door in the hallway of units 209 and 211 that was slightly ajar and led to a garbage chute room. There, Cst. Dort observed a pool of blood as well as a blood smear on the wall. Cst. Dort noted the bare footprints appeared to originate from the sliding door on the driver’s side of the Dodge Caravan in the parking lot.

[19] Cst. Darling transported J.K. to the hospital. Cst. Dort remained at 1310 McWatters Rd to secure the scene until other officers arrived to process the van and scene. Cst. Dort described J.K. as “in shock, quiet” and that she seemed scared.

(b) Documentary and Forensic Evidence

[20] In addition to testimonial evidence, the Crown tendered photobooks depicting 1310 McWatters Rd., including the stairwell, hallway, garbage chute room, as well as the inside of unit 211, specifically including the bathroom. The pictures depict the bare footprints described by Cst. Darling and Dort as well as blood markings.

[21] The Crown also tendered photobooks depicting the inside of the Dodge Caravan, including the staining on the passenger seat, the suitcase at the back of the van, and other blood marks described by Cst. Darling.

[22] J.K.’s medical records were also tendered and made an exhibit (Exhibit 11). These disclose that she suffered lacerations to her perineum, anus, and vagina that required surgery.

[23] Finally, forensic evidence revealed that the blood in the Dodge Caravan was J.K.’s.

(c) J. K’s hearsay utterances admitted into evidence

[24] The statement J.K. made to Ms. Friesen that “someone is trying to kill me” was admitted into evidence under the res gestae exception to the rule against hearsay.

[25] Also admitted under the res gestae exception were J.K.’s statements to Luna Ferguson “I was raped” and “Kerry raped me.”

[26] Finally, two statements made to Cst. Darling were admitted under the principled exception to the hearsay rule. The first is a circular gesture made by J.K. over her vaginal area in response to Cst. Darling’s question about where the blood was coming from. The second is J.K.’s response “in a van” to questions about where the assault took place.”

[27] The defence called no witnesses.

Positions of the Parties

Position of the Crown

[28] The Crown’s position is set out in the following passage from its written submissions:

“In the present case, there appears to be little dispute that the injuries suffered by J.K. constitute serious bodily harm. The question therefore becomes whether J.K.’s injuries arose through sexual activity with the accused, and whether J.K. consented to that sexual activity. It must then be determined whether the foreseeability of the bodily injuries is assessed on an objective basis, or whether the Crown must show that the accused intended or was reckless to the causing of said injuries.

The evidence clearly establishes that J.K. did not consent to the sexual activity resulting in her injuries. This is directly established through the statements made by J.K. to Ms. Friesen and Ms. Ferguson, specifically including “Kerry raped me.” There is no ambiguity surrounding this latter statement. J.K. is clearly indicating that non-consensual sexual activity with the accused occurred. This statement is inherently reliable given the excited manner in the way it was made but is also supported by considerable evidence. This includes the relationship between J.K. and the accused, the location of the injuries and their extent, her emotional state and demeanour. It also includes J.K.’s DNA found in the van, her confirmatory statement to that effect, and the footprints leading from the van to 1310 McWatters Rd.

The only reasonable inference arising from the body of evidence is that J.K.’s injuries were caused through sexual activity. When all of the evidence is considered, no other conclusion is plausible. The key question is with respect to the foreseeability of these injuries.

Given the evidence that the sexual activity was not consensual, all that is required is for the injuries suffered by J.K. to have been objectively foreseeable. This question is assessed with reference to a reasonable person in the same circumstances. While no direct evidence was admitted with respect to the specific mechanics causing the injury, the extent of the injuries renders impossible that a reasonable person would not have projected them as being foreseeable.”

Position of the Defence

[29] The defence submits that the Crown did not prove beyond a reasonable doubt the identity of the accused. Counsel contends that the evidence of Luna Ferguson that J.K. told her “Kerry raped me” is unreliable and should be rejected considering her failure to tell the police this on the night of the incident. It is also submitted that other evidence of identification is too weak to conclude that the accused had exclusive opportunity to commit the offence in the gray Dodge Caravan.

[30] It is also submitted that the Crown has not established two elements of the actus reus of the offence. Counsel says that the absence of any evidence from the complainant as to what transpired in the van means that the Crown has failed to prove that the accused touched J.K. and that the touching was of a sexual nature.

[31] The defence also submits that the Crown failed to prove that Mr. Degale intended to touch J.K. Since there is no evidence of what happened in the van and who caused the injury to J.K., it is impossible to infer that the accused intended to touch J.K.

[32] Finally, it is submitted that the Crown has failed to prove beyond a reasonable doubt that the accused knew or was wilfully blind to J.K.’s lack of consent.

Analysis

[33] Like every other person charged with a criminal offence, Mr. Degale is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities.

[34] This is a very high burden of proof standard and is so for very good reason. It is one of the principal safeguards of our criminal justice system to ensure that no innocent person is convicted.

[35] Because J.K. did not testify, the Crown’s case lacks direct evidence of what actually transpired in the van as between J.K. and Mr. Degale. As well, her utterances to the police as to the circumstances of the alleged offence were ruled to be inadmissible hearsay.

[36] As Crown counsel acknowledged during argument, the prosecution case is essentially a circumstantial one. In order to find the accused guilty on the basis of circumstantial evidence, I must be satisfied beyond a reasonable doubt that his guilt is the only reasonable inference that can be drawn from the whole of the evidence after considering all other plausible theories and reasonable possibilities that are inconsistent with guilt.

[37] In this regard, I have taken into account the principles set out by Justice Cromwell on behalf of the Court in R. v. Villaroman, 2016 SCC 33, on the use of circumstantial evidence and its relationship to proof beyond a reasonable doubt.

[38] Justice Cromwell set out the following principles governing the use of circumstantial evidence to establish guilt beyond a reasonable doubt:

• There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the trier of fact may unconsciously ‘fill in the blanks’ or bridge the gaps in the evidence to support the inference the Crown invites it to draw.
• The risk inherent in circumstantial evidence is the danger inherent in jumping to unwarranted conclusions.
• Where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative references. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
• A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
• The Crown will need to negative reasonable possibilities but does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. The Crown is required to negative any inferences that are based on logic and experience applied to the evidence or the absence of evidence, not on speculation. Alternative inferences must be reasonable, not just possible.

Did Mr. Degale sexually touch J.K. at the time of the alleged offence?

[39] Identification is a threshold issue that is in dispute.

[40] I am satisfied beyond a reasonable doubt that the Crown has established that Mr. Degale sexually touched J.K. on December 8, 2021, in a van used by Mr. Degale.

[41] I rely on the evidence of Luna Ferguson who saw the complainant minutes after the incident. I accept Ms. Ferguson’s assertion that J.K. told her “Kerry raped me”. J.K. was referring the accused Kerry Bevin Degale. At the time she uttered these words, J.K. was naked from the waist down, bleeding from her vaginal area and in emotional distress.

[42] I appreciate that Ms. Ferguson did not tell the police that J.K. said it was Kerry who raped her when she first spoke to them. I have also taken into account that Ms. Ferguson’s account of the precise wording of her brief conversation with J.K. changed to some minor degree during the course of her retelling in the course giving evidence. Nevertheless, I found Ms. Ferguson to be a sincere and credible witness. Ms. Ferguson had no motive to lie. She is the accused’s sister-in-law and the person who comforted and assisted J.K. when she saw the complainant distressed and bleeding from her vaginal area at the doorway. This event was no doubt unsettling for Ms. Ferguson and her recollection of the exact words of the conversation is understandably imprecise. I am satisfied that J.K. told her that Kerry raped her.

[43] I am also satisfied that J.K.’s identification of the accused in her res gestae statement to Ms. Ferguson “Kerry raped me” was in and of itself spontaneous and credible and reliable evidence that it was the accused who sexually touched her.

[44] There is other evidence that supports the Crown’s position that it was Mr. Degale who engaged in sexual activity with J.K.

[45] J.K. told Cst. Darling that the assault had occurred “in a van”. The evidence connects the accused to the gray Dodge Caravan and the alleged offence.

[46] Ms. Ferguson testified that she knew J.K. to be the accused’s girlfriend. Mr. Degale lived with Ms. Ferguson and her family. Ms. Ferguson’s husband, Curtis Degale, the brother of the accused, owned a grey Dodge Caravan that was usually parked either outside the building or inside in a parking spot. Ms. Ferguson gave credible evidence that Mr. Degale used this vehicle for work and that her husband did not allow anyone else to drive the vehicle. Only Kerry used the van. There is no dispute that J.K. was injured in a grey Dodge Caravan that was parked in the outside lot of the building where Luna Ferguson and her family and the accused lived. J.K. was bleeding from her injury. Her blood was found on the passenger seat of the grey Dodge Caravan.

[47] Upon a consideration of all of the evidence relating to the issue of identification, I am satisfied that the alleged assault took place in the grey van used by the accused and that it was Mr. Degale who was with J.K. on the night of December 8, 2021.

[48] Further, I am satisfied on the evidence that the accused engaged in sexual touching of J.K. in that van on the night of December 8, 2021, which resulted in serious bodily harm. I rely on J.K.s statement that the accused raped her as well as the evidence of the injuries to her genital area. I reject alternative possibilities posited by the defence that someone other than the accused such as Curtis Degale, or a complete stranger or even the complainant herself had caused those injuries. On the evidence, these possibilities are implausible and unreasonable.

Did J.K.’s injuries amount to a “wounding” within the meaning of s. 273?

[49] In the course of sexual activity with the accused, J.K. suffered lacerations to her vaginal, perineal and rectal areas. A medical report admitted as exhibit 11 describes J.K.’s injuries and the necessary surgery required to treat them. The report was admitted on consent. This evidence leaves no doubt that she suffered serious bodily harm. This was a wounding within the meaning of s. 273.

Has the Crown proven that J.K. did not consent to the sexual touching by Mr. Degale?

[50] This element of the offence requires the Crown to prove beyond a reasonable doubt that J.K. did not consent to the sexual touching by Mr. Degale. Her consent must relate to the specific sexual touching alleged by the Crown. Consent involves J.K.’s state of mind at the time of the activity. Consent is J.K.’s conscious agreement to take part in the physical sexual act that resulted in her injury. Her consent must be given freely at the time that the touching occurred. I am also mindful that an agreement to touching of one kind, or to one part of the body, is not an agreement to touching of any or all other kinds, or to another or all other parts of the body. An agreement to some or a particular kind of or degree of touching is not an agreement to another or all other kinds, or degrees of touching.

[51] I agree with the Crown’s submission that the evidence establishes beyond a reasonable doubt that J.K. did not consent to the sexual activity that resulted in her injury. I rely on J.K.’s statement to Mary Friesen “someone is trying to kill me” and her statement to Luna Ferguson “Kerry raped me” as compelling evidence of her lack of consent. The circumstantial evidence including her physical injuries, distressed condition and state of undress observed just a few minutes after the incident constitute further evidence of J.K.’s lack of consent. The footprint and other pieces of forensic evidence show that J.K. fled from the van into the apartment building in her bare feet and half naked through the snow on very cold winter night. This is further evidence that J.K. did not consent to the sexual act or acts by the accused which injured her. Finally, it defies common sense and human experience that J.K. consented to being injured in the manner she was during the course of sexual activity with the accused.

[52] The Crown has, therefore, proven the actus reus of the offence beyond a reasonable doubt. I now address the issue of whether the Crown has proven the mental element or mens rea of the offence.

Has the Crown proven beyond a reasonable doubt that Mr. Degale knew that J.K. was not consenting or was wilfully blind or reckless as to her lack of consent?

[53] With respect to the essential element of knowledge, the absence of the complainant’s account of the circumstances of the alleged offence leads me to reasonable doubt. There is simply no evidence of how the sexual interaction transpired, what J.K.’s body language was during the interaction or what words were exchanged between J.K. and Mr. Degale during the interaction. There is no evidence that J.K. communicated her lack of consent to Mr. Degale or that he knew or was wilfully blind to it. The Crown has not proven beyond a reasonable doubt that Mr. Degale knew that J.K. was not consenting or was wilfully blind or reckless as to lack of consent.

Has the Crown established that Mr. Degale intended to cause serious bodily harm to J.K.?

[54] Consent cannot be nullified unless there is both intent to cause bodily harm and serious bodily harm is caused: see R. v. McDonald, 2012 ONCA 379 at paras 25-28.

[55] Again, in the absence of evidence as to the particular circumstances of the alleged offence, it is not possible for the court to find beyond a reasonable doubt that the accused intended to harm J.K. or cause her bodily harm. The lacerations to J.K.’s genital area are significant. However, as submitted by the defence, there was no medical evidence as to what degree or kind of force would have been required to cause these lacerations. There is no evidence as to how the injuries were caused and what, if anything, was said by either J.K. or the accused during the sexual activity that resulted in the injury. Counsel for Mr. Degale correctly submits that there is a “dearth of critical information” necessary to permit a finding that the accused intended to cause J.K. serious bodily harm.

[56] For all of the above reasons, I find that the Crown has not proven the guilt of the accused beyond a reasonable doubt. The charge of aggravated sexual assault is dismissed.

Released: July 28, 2023 Justice T. Lipson