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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court File and Parties
DATE: 2023·09·15 COURT FILE No.: Toronto 4814 998 22 40002218 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JUSTINE WATSON
Before: Justice Carol Brewer
Heard on: May 5, May 23, June 1, June 2, and June 7, 2023
Reasons for Judgment released on: September 15, 2023
Counsel: Mohsin Yousuf ....................................................................................................... for the Crown Ari Goldkind ............................................................................................................ amicus curiae The defendant, Justine Watson ............................................................................. on her own behalf
Brewer J.:
Introduction
[1] Justine Watson is charged with sexually assaulting S.H. on April 14, 2022.
[2] This charge arises out of an encounter between Ms. H. and a stranger in the early hours of the morning. S.H. was on her way home from work. The person, who Ms. H. believed to be a man, spoke to the complainant. S.H. politely declined any conversation. The complainant described being pursued by the unknown person, who caught up to her on four occasions. Ms. H. testified that she was touched on her buttocks by the assailant’s hands and groin; and she was prevented from getting away while the stranger stood close to her and masturbated. Ultimately, the complainant managed to take refuge in a condo building, where she was assisted by the security guard and police were called.
[3] It is the Crown’s position that S.H. was sexually assaulted and that Justine Watson was the perpetrator. In addition to Ms. H.’s testimony, some of the interactions between the complainant and her assailant were captured on video surveillance. On the issue of identification, the Crown’s case against the defendant is a circumstantial one, involving similarities between the appearance of Ms. Watson and her possessions with those of the assailant, together with a comparison between Ms. Watson’s DNA and DNA obtained from a Presto card registered to the defendant that was located outside of one of the places where Ms. H. was stopped by the stranger.
[4] Ms. Watson is a trans woman, who was living in the shelter system at the time of these events. Her defence is founded on mistaken identification. As is her right, Ms. Watson did not testify.
The Evidence
A. Evidence Relating to the Offence
[5] At about 1:40 a.m. on April 14, 2022, S.H. testified was at the intersection of Yonge Street and Empress Avenue. She crossed Yonge Street, going west onto Empress Avenue. On the northwest corner of the intersection was a building complex that included the Empress Walk Mall and some condominium residences. The complainant saw a person she believed to be a man standing by the PetSmart store. The stranger asked, “Do you have some time?” Ms. H. replied, “No” and added, “Sorry” before continuing to walk west on Empress Avenue. Feeling anxious about the encounter, the complainant glanced backward and discovered that the stranger was walking close behind her. Although S.H. increased her pace, the unknown person grabbed her by the shoulder from behind, pulled her closer to his body, thrust his penis against her buttocks five or six times, then squeezed her buttocks four or five times. The touching was hard and fast. Both parties were fully clothed. The stranger did not say anything while touching Ms. H. The complainant shook off the person’s grip, turned to look at the stranger and said, “What’s wrong with you?” At that time the stranger responded, “You dropped something. You dropped something.” and showed S.H. a phone. The complainant replied, “It’s not mine. Don’t follow me. Fuck you.” She ran towards the east side entrance to the condo building at 33 Empress Avenue, but before she arrived there the stranger grabbed her shoulder again. [1] Ms. H. shook the stranger’s hand off her shoulder and managed to run to 33 Empress Avenue.
[6] The complainant described stranger as a man wearing a black hat and black ankle boots. He had a white cloth mask over his face; the only part of his face that was visible were the eyebrows and eyes. The man was wearing a black backpack with yellow boots hanging from it.
[7] S.H. testified that when she reached 33 Empress Avenue, she banged on the door and shouted, “Help! Open the door!” However, the guard did not unlock the door. Realizing that she would not get any assistance, the complainant turned to face the stranger. This person was very close to her, so Ms. H. pushed him away. She noticed that the stranger had a cell phone in one hand. The other hand was inside his underwear, masturbating. The complainant used her telephone to call her boyfriend. English is not S.H.’s first language [2] and she was afraid that if she called 911, the operator would not understand her. In Korean, Ms. H. asked her boyfriend to call 911 for her. The complainant tried to explain to her boyfriend what was happening to her and where she was located, but she was panicky and speaking very quickly so he had difficulty understanding her. While Ms. H. was on the phone, the stranger kept saying, “You dropped something.” She responded, “It’s not mine! Go away! Fuck you!” As S.H was considering how to get away, she saw a black Presto card on the ground. The complainant told the stranger, “I think you dropped your Presto card.” The unknown person picked up the card but was still blocking her way. Feeling desperate to escape as the stranger kept masturbating, Ms. H. grabbed the phone from the stranger’s hand and threw it. As the stranger stepped away to retrieve the phone, S.H. believed that her assailant was reaching for his ankle. Fearing that the stranger had a weapon, the complainant fled. S.H. testified that stranger did not put his hands on her at 33 Empress Avenue.
[8] Senay Gebrewold was the security guard on duty at 33 Empress Avenue in the early morning hours of April 14, 2022. He described seeing a woman come to the entrance door and try to open it. A guy came up behind the woman and appeared to be wrestling with her. Mr. Gebrewold believed that the couple were quarreling. He got the radio, planning to contact security at the Empress Walk Mall for assistance. However, when he saw the woman running away, Mr. Gebrewold radioed his counterparts at the mall and at 8 Hillcrest Avenue.
[9] H.J. testified that his girlfriend, S.H. called him at about 2:00 a.m. on April 14, 2022. Mr. J. confirmed that the complainant sounded out of breath and panicky. During the conversation, that lasted two to three minutes, H.J. heard his girlfriend saying not to follow her and that “It’s not my phone” several times. He could not hear the person with whom his girlfriend was speaking. Mr. J. had difficulty determining exactly where S.H. was located. He ended their call to contact the 911 operator.
[10] The security footage from 33 Empress Avenue was played. [3] Ms. H. recognized herself as the woman in the light purple puffer jacket with the hood up, wearing a black face mask, a black shirt that hung below the jacket, black leggings, and short black boots. She identified the taller person, who was wearing a black jacket with the hood raised, a white cloth bandana tied over the hood as a mask, black pants and footwear, as her assailant. The stranger had on a gray backpack, to which a pair of yellow boots were attached. The video shows the stranger running up behind S.H. as she tries to open the door to the building’s entrance. The assailant grabs the complainant’s crotch [4] and presses her against the door, using their upper body. The stranger touches Ms. H.’s body, moves their hand to the complainant’s waist and thrusts their groin against S.H.’s buttocks for a brief period. [5] Ms. H. can be seen turning to face her assailant, with her right hand against her ear. On four occasions, the complainant can be seen pushing the stranger away from her body. [6] At 1:53:32, the perpetrator appears to drop something and stoops over to pick it up. Shortly thereafter, at 1:54:12, the stranger appears to lose possession of an object, which S.H. obtains. Ten seconds later, Ms. H. throws an object into the path outside of the entrance. When the perpetrator goes to pick the item, the complainant bolts, and the assailant runs after her. At no time during the surveillance video can the front of the stranger’s body be seen.
[11] A security camera on the fire route north of 33 Empress Avenue captured an image of the assailant running north along a winding pathway at 1:53:40 before the view is obstructed. [7] Eleven seconds later, S.H. can be seen running with the stranger following her. The complainant stops and turns to face her pursuer. The angle of the camera only shows a rear view of Ms. H.’s body, which prevents the viewer from seeing the nature of any interaction between her and the stranger and blocks sight of the assailant apart from his head. S.H. testified that she told the stranger not to follow her and that he kept saying that she dropped something. The complainant described the assailant continuing to masturbate, with his hand making a pumping motion inside his underwear. She confirmed that there was no physical contact with her while the man was masturbating. Ms. H. surreptitiously took a photograph of the stranger. [8] At 1:54:27 the security video shows the perpetrator bending over and reaching towards his ankle. S.H. reacts by fleeing, with the assailant following her.
[12] The complainant testified that she saw her assailant masturbating on several occasions: in cross-examination she said it was four times; in re-examination she believed it was three times. This occurred at 33 Empress Avenue, on the way to 8 Hillcrest Avenue and immediately outside the entrance to 8 Hillcrest Avenue. On the last of these instances, S.H. said that she could see that the stranger was wearing yellowish-white cotton boxer underwear.
[13] Additional surveillance footage shows the complainant running towards 8 Hillcrest Avenue and reaching the front entrance at 1:54:34. [9] The stranger comes into camera range two seconds later. Mohmoud El-Hatab, the security guard at 8 Hillcrest Avenue, had been advised that two people had been fighting outside 33 Empress Avenue and were heading towards his location. On the security cameras, Mr. El-Hatab saw two people running towards the building entrance. At 1:54:40, he left the security desk and moved towards the front doors. [10] At 1:54:47, S.H. enters the vestibule and knocks on the interior door. [11] Five seconds later, the assailant follows her into the vestibule and extends his right arm, holding out a black phone towards Ms. H. [12] The complainant pushes the button for handicapped entry, [13] which she testified was done to speed the opening of the lobby door. Upon recognizing S.H., Mr. El-Hatab arranged for the door to unlock. As the lobby door opens, the stranger is positioned blocking the complainant’s ability to enter. S.H. walks around the assailant and enters the lobby at 1:54:56. [14] The perpetrator stumbles and drops to one knee before following Ms. H. into the lobby. The complainant immediately approaches Mr. El-Hatab and asks for his help, saying the stranger was following her and trying to assault her. S.H. appeared to be frightened, in shock and on the verge of tears. Mr. El-Hatab confronts the perpetrator, who holds out the phone saying that they think it belongs to Ms. H. The complainant says the phone was not her property. Mr. El-Hatab directs the stranger to put the phone on the security counter and the latter complies, stepping back and raising their hands. S.H moves to a seating area in the lobby. While Mr. El-Hatab calls for assistance, the assailant retrieves the phone and leaves the lobby. [15] Just as the stranger is exiting the front door of 8 Hillcrest Avenue, Tim Stone, another security guard, arrives. [16] The assailant runs down the driveway [17] as Mr. Stone and Mr. El-Hatab briefly confer. [18] Mr. Stone pursues the perpetrator, [19] but is unsuccessful in locating that individual.
[14] Ms. H. testified that later in the day, after she slept for a few hours, she discovered several scratches on her body: three or four on her left inner thigh near her vagina and three on the left side of her waist. Photographs of the scratches appear akin to claw marks, with raised pink welts and breaks to the skin that have bled. [20] The complainant also expressed the belief that a vaginal infection she suffered for a week following this incident was attributable to the assailant’s conduct. In cross-examination, S.H. conceded that the stranger did not touch her vagina.
B. Evidence Relating to Identification
[15] As soon as the two people left 33 Empress Avenue, Mr. Gebrewold went outside to see if he could tell where they went. He saw a Presto card on the ground, that had not been there before the two people arrived. On the surveillance video, the stranger can be seen beside the orange pole for the security gate at 33 Empress Avenue. At 1:54:27 there is nothing on the ground near that person’s foot. At 1:54:28 a small white object can be seen on the ground where the assailant had been standing. Mr. Stone testified that he heard a radio call from Mr. Gebrewold about the Presto card and went to 33 Empress to ask where it had been found. The two guards went to 8 Hillcrest Avenue, where the card was placed in a plastic bag and then turned over to the police.
[16] Constable Chennelle Matheson testified that she was given a Presto card by Mr. Stone at 8 Hillcrest Avenue. The card had a black front and was white on the back. The officer recorded the numbers printed on the rear of the card. [21] At 3:29 a.m. on April 14, 2022, Constable Matheson gave the Presto card to Constable Mijares, a SOCO officer.
[17] Detective Constable Adrian Hyatt contacted Presto to ascertain whether the card found outside 33 Empress Avenue had been registered. He obtained a production order to receive information about the registered owner of the card. Sean Bourke, who works for Metrolinx, the parent company of Presto, received the production order and obtained the requested information. Mr. Bourke testified that each Presto card has a unique number and that records about the people who register each card are kept in the ordinary course of their business. The Presto card was purchased on April 12, 2021, and registered in the defendant’s name on December 5, 2021. [22]
[18] On April 27, 2022, the Centre of Forensic Science (CFS) received a DNA swab from a located Presto card belonging to a male perpetrator from 33 Empress Avenue, labelled SW-12058945. Constable Rene Mijares was listed as one of the investigators. Melinda Matte, a forensic biologist at the CFS, [23] tested the swab from the Presto card and concluded that the swab contained a mixture of three people’s DNA, [24] at least one of whom was a biological male. [25] Ms. Matte also tested a buccal swab from the complainant and a swab taken for S.H.’s jacket as part of the same testing request.
[19] On November 3, 2022, Constable Leslie Wyard went to the Vanier Detention Centre to execute a DNA warrant on Justine Watson. The officer obtained a sample of the defendant’s blood and placed it in a foil pouch, labelled as Ex 9299-1, in property bag B1418506. The blood sample was taken to Forensic Identification Services. It was subsequently delivered to the CFS, and the submission was approved.
[20] On November 14, 2022, the CFS received item 9299-1 B1418506, the blood sample taken from Ms. Watson pursuant to the DNA warrant. Ms. Matte compared the blood sample taken from Ms. Watson with the DNA mixture on the Presto card. Ms. Matte’s report states:
Justine Watson cannot be excluded as a contributor to Mixture 1 from the swab of the Presto card from 33 Empress Avenue. The STR DNA results are estimated to be greater than one trillion times more likely if they originate from Justine Watson and two unknown people than if they originate from three unknown people unrelated to Justine Watson. [26]
At trial, Ms. Matte stated that there is an extremely high chance that the defendant’s DNA is a significant contributor to the DNA mixture on the Presto card. Ms. Matte also made it clear that she cannot tell how or when Ms. Watson’s DNA was deposited on the Presto card.
[21] Justine Watson has a tattoo of a Bahamian flag [27] on the back of her right hand and a tattoo of a marijuana leaf on the back of her left hand. Photographs of the defendant’s face and hands were taken by Special Constable Rose Marie Dennie-Brown, on April 5, 2022, during the booking process at 43 Division on an unrelated matter. [28] The flag tattoo is also visible on the back of Ms. Watson’s right hand in screen shots from the body-worn camera video of her arrest, on May 3, 2022, by Constables Warren and Brooks on this charge. [29] In the security video from the vestibule of 8 Hillcrest Avenue, the back of the assailant’s right hand has a rectangular image with three stripes of blue, yellow and blue, akin to those on the Bahamian flag. [30]
[22] When Ms. Watson was arrested on May 3, 2022, she was wearing a distinctive gray backpack. Constable Tinesha Warren identified herself as the person holding the backpack that was taken from the defendant’s shoulders at the time of her arrest in Exhibit 19e. Detective Constable Hyatt obtained a search warrant and seized the backpack from Ms. Watson’s property at the Vanier Detention Centre. On May 10, 2022, Constable Haryot Kapoor took photographs of the defendant’s backpack. [31] The backpack is pale gray with darker gray portions on the front pocket and the rear. The front pocket has a pale gray logo and the words “High Sierra” on it. The zipper for the front pocket and the main pocket of the backpack is pale gray. There is a black latch on the front pocket of the backpack, below the zipper. On the back of the backpack are two shoulder straps that are dark gray with a light gray area at the top. The lower part of the left strap has a gray tag with a logo and the words, “High Sierra”. The upper part of the left strap has a black and dark gray patch in the light gray area. The light gray upper part of the right strap has an orange patch with “High Sierra” in white writing, a black stripe with white writing of “Suspension Strap System” and a white swirl. In the surveillance video, the assailant can be seen wearing a backpack with the same light and dark gray colouring. There is a logo on the front of the pack above the zipper on the front pocket. Yellow boots are hanging from a black clip below the zipper on the front pocket. The straps of the backpack are light gray at the top with a darker patch. [32]
Issues and the Law
A. Fundamental Principles
[23] In a criminal trial, the accused person is presumed to be innocent, unless and until the Crown has proven each essential element of this offence beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Ms. Watson is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [33]
[24] This case is based, to a significant degree, on circumstantial evidence, namely evidence from which a judge or jury can infer the existence of a fact in issue. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established in the proceedings. [34] In R. v. Villaroman, the Supreme Court provided helpful guidance about the proper approach to be taken in cases involving circumstantial evidence. On behalf of the court, Cromwell J. pointed out the dangers of jumping to unwarranted conclusions in circumstantial cases and the risk that the trier of fact will “fill in the blanks” or “bridge gaps” in the evidence when drawing inferences from circumstantial evidence. [35] When assessing circumstantial evidence, a judge must consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt. Those theories must be based on logic and experience applied to the evidence or absence of evidence, not on speculation. [36] An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits. [37] In other words, to justify a conviction, the circumstantial evidence, assessed in light of human experience, should exclude any other reasonable alternative. [38]
[25] The standard of proof beyond a reasonable doubt does not apply to individual pieces of evidence but must be determined upon the cumulative effect of the evidence taken as a whole.
[26] In assessing the evidence of the witnesses in this case, consideration must be given to their credibility and reliability. Credibility relates to the honesty of the witness. Reliability involves evaluating the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence. [39]
[27] Testimony can be assessed through a non-exhaustive list of factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent (f) the witness’ demeanour while testifying. [40]
[28] The testimony of the witnesses must be assessed in light of the totality of the evidence. A trial judge is entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.
[29] This analysis must be carried out in accordance with the principles articulated by the Supreme Court of Canada in R. v. D.W.:
(i) If I believe the evidence that is inconsistent with the defendant’s guilt, I must acquit her.
(ii) Even if I do not believe the evidence that is inconsistent with the defendant’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit.
(iii) Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the defendant’s guilt beyond a reasonable doubt. [41]
B. Assessment of Credibility and Reliability
[30] Although I heard testimony from numerous witnesses, the key witness for the Crown was S.H. I accept that Ms. H. was a sincere witness, who was trying to provide an honest description of these events. I also appreciate that this was a traumatic and chaotic situation, where the complainant was in real fear for her safety. Yet, when viewed in context, I have serious concerns about the reliability of S.H.’s testimony. My reasons for these concerns, include the following factors:
- there were some internal inconsistencies in Ms. H.’s testimony. For example, she initially stated that the assailant gripped her left shoulder and squeezed her left buttock, but this evolved into the stranger holding both shoulders and both buttocks;
- the complainant appears to have conflated some of the events in her encounters with the stranger. She testified that the perpetrator had no physical contact with her at 33 Empress Avenue, while the security video shows the assailant groping S.H. and thrusting their crotch against her buttocks as Ms. H. described occurring in the encounter before her arrival at 33 Empress Avenue. Similarly, the complainant stated that the stranger reached for his ankle, and she feared he was getting a weapon, while they were outside 33 Empress. However, the security footage shows that this conduct did not occur at 33 Empress, but on the fire route between 33 Empress and 8 Hillcrest Avenue;
- S.H. testified that her assailant was masturbating, with a hand inside his underwear on three occasions. At 33 Empress Avenue, Mr. Gebrewold did not see such behaviour, nor was it apparent on the surveillance video. On the fire route, the complainant took a photograph of her pursuer that she testified showed the assailant masturbating. Although Mr. Yousuf submits that the photograph shows the stranger’s right hand inside the waistband of their pants, I find the image too blurry to observe the person’s right hand at all, much less ascertain where it was located. Crown counsel also suggests that the white blur around the assailant’s waist on the photograph supports S.H.’s evidence about seeing the assailant’s underwear. However, the perpetrator was wearing a white t-shirt, which can be seen hanging below their jacket in the surveillance videos. [42] I believe it is far more likely that the t-shirt was the source of the white blur, than a pair of white boxers becoming visible during an act of masturbation. [43] More importantly, Ms. H. described the third incident of masturbation occurring outside of 8 Hillcrest. However, the security video shows the complainant running from the encounter on the fire route at 1:54:27, reaching 8 Hillcrest at 1:54:34 and entering the vestibule before the stranger arrives at the front door of the building. Based upon this footage, I find that there was no masturbation incident outside 8 Hillcrest, as these two people were not together until inside the well-lit vestibule at 8 Hillcrest, where any such conduct would have been visible to Mr. El-Hatab and captured on the security video; and
- S.H. attributed the scratches on her waist and inner thigh to her encounters with the assailant. However, the complainant never mentioned being touched on either of those places during her testimony. Further, all the assailant’s physical contact with Ms. H.’s body was over her winter clothing. I do not believe that scratches of the kind shown in the photographs could have occurred in the circumstances described by the complainant and shown on the video recordings.
[31] Given my concerns about S.H.’s reliability, I cannot place any weight upon her version of events unless it is supported by other independent evidence. I find that the security videos provide a reliable depiction of these events and will rely upon them in determining whether the Crown has proven its case beyond a reasonable doubt.
[32] I am satisfied that the other witnesses in this trial provided me with testimony that is both credible and reliable.
C. Sexual Assault - The Law
[33] The physical elements of the offence of sexual assault are:
- a touching, or an attempt or threat by an act or gesture to apply force, if the accused has the present ability to effect his or her purpose; [44]
- circumstances that objectively provide a sexual context for the assault; and
- the absence of consent on the part of the complainant.
[34] The Supreme Court of Canada dealt with proof of a sexual context for the touching in R. v. Chase: [45]
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [Citations omitted.]
[35] Consent is defined in s. 273.1(1) of the Code as the voluntary agreement to engage in the sexual activity in question. It is the conscious agreement of the complainant to engage in a particular sexual act and must be freely given. [46] Consent is on-going. It requires an ability to evaluate and decide on each sexual act in a particular encounter [47] and must be present at the time the sexual activity occurs. [48] Consent means that the complainant in her mind wanted the sexual touching to take place. The absence of consent is to be determined solely based on the complainant’s “subjective internal state of mind” at the time that the assault occurred. [49] There is no consent if the complainant expresses, by words or conduct, a lack of agreement to engage in or to continue to engage in the activity. [50]
[36] The mental requirements for a sexual assault are:
- an intentional touching or threat to touch; and
- knowledge, recklessness, or wilful blindness as to the complainant’s lack of consent.
Analysis
[37] I am satisfied that the security footage of the interaction between S.H. and the perpetrator outside 33 Empress Avenue establishes a sexual assault. These two people were strangers to one another. The assailant ran up behind the complainant, grabbed her crotch, pressed her against the outer door of the building and began thrusting their groin against her buttocks. This was intentional conduct that occurred immediately - before any consent could have been sought, much less granted. Given the parts of the body that were touched and the nature of the conduct, I find that these actions had an objectively sexual context and violated Ms. H.’s sexual integrity. The complainant’s conduct in repeatedly pushing the stranger away from her demonstrates her lack of consent to the touching. In these circumstances, no one could legitimately believe that S.H. was consenting to this behaviour. Ms. S.’s distress was apparent to her boyfriend during their telephone conversation and, upon her arrival at 8 Hillcrest Avenue, was visible to Mr. El-Hatab and noticeable in the security footage.
D. Identification
[38] The crucial issue in this case is whether the Crown has proven beyond a reasonable doubt that Ms. Watson was the person who pursued and sexually assaulted S.H. There is no direct evidence of identification here, as the perpetrator was wearing a hood and had their face covered with a bandana. The assailant’s eyes and eyebrows were the only visible portion of their face. However, it is well established that identity can be proven by circumstantial evidence. [51]
[39] To establish that Ms. Watson was the perpetrator, Mr. Yousuf relies upon evidence of ownership of the Presto card; the presence of the defendant’s DNA on the Presto card; similarities between the appearance of the assailant and Ms. Watson; and the common features of the backpacks each of them wore. Before considering the cumulative effect of this circumstantial evidence, it is necessary to address two legal issues.
Hearsay Evidence
[40] Crown counsel has brought an application seeking the admission of the notes and the property report made by Constable Mijares, who did not testify at trial. Mr. Yousuf’s purpose in introducing these documents is to strengthen the evidence on the chain of custody of the Presto card on which the DNA was found.
[41] As noted in R. v. Sikora,
Showing continuity of exhibits is not a legal requirement and the issue of continuity does not involve admissibility, but it goes to the weight of the evidence proffered. Weak evidence of continuity and strong evidence of contamination can lower the probative value of DNA evidence, which may result in the Crown not being able to prove guilt beyond a reasonable doubt. . . .
Generally, not every gap in continuity need to be explained by the Crown and such a gap will not be fatal to the Crown's case, unless it is to such an extent that it raises a reasonable doubt. There is no requirement that the Crown must produce each individual that had contact with evidence during the chain of transfer between the time the sample was taken and the time it was provided to the analyst. In the absence of evidence that the DNA sample was interfered with and contaminated before it came into the hands of the analyst, there will be no concerns regarding the probative value of the evidence. The case law is clear that raising a reasonable doubt about the integrity of an exhibit requires something more than mere speculation that the exhibit might have been interfered with. [52] [citations omitted]
[42] Hearsay is an out-of-court statement relied upon for the truth of its contents. Hearsay statements are presumptively inadmissible, unless the party seeking to introduce the evidence rebuts the presumption against admission. In making that determination, a judge must focus on whether the twin criteria of necessity and threshold reliability have been met on a balance of probabilities. [53]
[43] Necessity is measured by availability. [54] Illness is a well-established situation of necessity. [55] In this case, two letters from the Wellness Unit of the Toronto Police Service have been adduced as to the state of Constable Mijares’ health, indicating that he is not able to perform policing duties, including testifying in court proceedings. [56] The second letter is dated May 23, 2023 and states that Constable Mijares’ ability to return to policing duties is indeterminate at that time and will be reassessed at the end of July 2023 – well after the end of this trial.
[44] Threshold reliability addresses admissibility. It can be shown by demonstrating that there are sufficient circumstantial or evidentiary guarantees that the hearsay statement is inherently trustworthy to provide the judge with a satisfactory basis for evaluating the truth of the statement. [57] The concern to be addressed is whether the absence of in-court, contemporaneous cross-examination would impair that ability or whether the circumstances provide a rational basis for concluding that the hearsay statement is truthful and accurate. By contrast, an assessment of the ultimate reliability of the hearsay statement involves evaluating whether and to what degree the hearsay statement should be believed and relied upon to decide issues in the case. This determination must be made in the context of the entirety of the evidence in the trial. [58]
[45] In this case, Constable Mijares’ notes possess strong circumstantial guarantees of reliability. As the Supreme Court of Canada stated in Schaeffer v. Woods, [59] police officers have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Police officers understand that their notes will be needed to refresh their memory at trial, relied upon by Crown counsel in making keys decisions about the prosecution and disclosed to the accused and defence counsel for their use in preparing a defence and conducting cross-examination.
[46] The notes and property report prepared by Constable Mijares meet the requirements for admission of a business record under the common law, [60] in that they are:
a record containing (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. [61]
[47] Both documents record details of actions taken by Constable Mijares himself in carrying out routine duties — as opposed to the observations or interpretations of the words and actions of others in urgent or chaotic circumstances — thereby addressing the possibility of misperception. The notes were made contemporaneously, as events occurred, negating any concerns about memory. There was nothing controversial about the information recorded in the documents, to raise the possibility of misrepresentation. Indeed, portions of the information contained in the documents is confirmed by other evidence heard in the trial.
[48] I am satisfied that both documents are inherently reliable such that contemporaneous cross-examination of the declarant would not change the information provided or add anything to the process. The information set out in the notes and the property report is admissible and can be summarized as follows:
- Constable Mijares received a Presto card from Constable Matheson at 3:29 a.m. on April 14, 2022. He recorded the date and number on the back of the Presto card, information that matches the photograph taken of the back of the card and the testimony of Constable Matheson.
- Constable Mijares used gloves to protect against contamination and swabbed the Presto card for DNA evidence. The swab (SW-1) was sealed, given the bar code of 2058945 and a receipt label of P6989125 and placed in property bag B2220094. The property receipt prepared by the officer, on April 24, 2022, states that the Presto card was found at 33 Empress Avenue. The officer made a request for CFS to test the swab for DNA. The same description of the swab (SW-1), receipt label and description of the swab as coming from a Presto card located at 33 Empress Avenue is set out in Biology Reports 1 and 2 from Ms. Matte.
- Constable Mijares took photographs of the front and back of the Presto card and uploaded them into the Photo Imaging Network.
Judicial Observation and Comparison of Appearance
[49] In R. v. Nikolovski, [62] the Supreme Court of Canada held that a trial judge is entitled to draw her own conclusions on the issue of identity on the issue of identity by comparing video surveillance evidence with the appearance of the accused in the courtroom. However, Justice Cory cautioned that that the degree of clarity and the quality of the tape and the length of time that the person appears on the recording will bear on the weight that the trier of fact may properly place on the evidence.
[50] Based on Nikolovski, Mr. Yousuf submits that I am entitled to compare the appearance of Ms. Watson in the courtroom, in the recording of her arrest and in the photographs taken by Special Constable Dennie-Brown with the appearance of the assailant in the Exhibit 6c still photograph from the security video of the vestibule at 8 Hillcrest Avenue. It is the Crown’s position that Ms. Watson and the perpetrator have the same skin colour and the same shaped eyes. In my opinion, the quality of the screen shot does not permit such a comparison. The hood the stranger is wearing protrudes forward to the extent that it shades their face, making it difficult to accurately assess skin colour. In addition, Exhibit 6c does not permit a clear or direct view of the assailant’s eyes to enable the requested comparison. I decline to consider this as part of the circumstantial evidence bearing on the perpetrator’s identity.
Analysis
[51] I believe that circumstantial evidence of identification led by the Crown, when considered cumulatively, is compelling. The perpetrator of the sexual assault on S.H. outside 33 Empress Avenue, while leaving the scene and pursuing the complainant, dropped a Presto card belonging to Justine Watson and containing a DNA mixture to which there was an extremely high likelihood that Ms. Watson was a significant contributor. The assailant and Ms. Watson both have a tattoo of a Bahamian flag on the back of their right hand and were seen wearing strikingly similar backpacks.
[52] In accordance with Villaroman, I must consider other plausible theories or reasonable possibilities inconsistent with guilt. While the Crown may need to negative such reasonable possibilities, they do not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. The other plausible theories or reasonable possibilities must be based on “logic and experience applied to the evidence or the absence of evidence, not on speculation.” [63] Alternative theories inconsistent with guilt must be reasonable, not just possible. [64]
[53] Amicus counsel, Mr. Goldkind points out that the Presto card could have been lost or stolen. When considered in the context of the evidence in this case, I find such a theory to be speculative and unreasonable. In my view, the circumstantial evidence of identification, assessed in light of human experience, excludes any other reasonable alternative. Put another way, the only reasonable inference to be drawn from this evidence is that Justine Watson was the person who sexually assaulted S.H.
Conclusion
[54] For these reasons, I am satisfied that the Crown has proven this charge beyond a reasonable doubt. A finding of guilt is entered.
Released: September 15, 2023 Signed: “Justice Carol Brewer”
Footnotes
[1] See Exhibit 1: Map, which was drawn by complainant, showing the route she took in fleeing from the stranger. The places S.H. was stopped by the stranger are marked on the map: 1 is the place where she first saw the stranger; 2 is the location of the initial assault she alleged; 3 is the entrance to the condos at 33 Empress Avenue; 4 is entrance to the condos at 8 Hillcrest Avenue. When S.H. described her shoulder being grabbed for a second time, she situated this between 2 and 3 on the map. [2] The complainant’s communications with the stranger were in English. At trial S.H. testified with the assistance of a Korean interpreter. [3] Exhibit 2. The recording has no sound and shows the entrance to the building from a distance. [4] Exhibit 2, 1:52:57 to 1:53:04 [5] Exhibit 2, 1:53:00 to 1:53:10 [6] Exhibit 2, at 1:53:10, 1:53:13, 1:53:20 and 1:54:17 [7] Exhibit 3 [8] Exhibit 4 [9] Exhibit 5 [10] Exhibit 8 [11] Exhibit 6a at 1:40:47 (real time: 1:54:47). Mohmoud El-Hatab testified that the camera at the front entrance of 8 Hillcrest Avenue is 14 minutes slow due to a technical issue. [12] Exhibit 7a at 1:40:52 (real time: 1:54:52). [13] Exhibits 7a and 8 [14] Ibid [15] Exhibit 8 [16] Exhibit 7a at 1:41:33 (real time: 1:55:33) [17] Exhibit 13 [18] Exhibit 7a [19] Exhibit 13 [20] Exhibits 9 and 10 [21] See Exhibit 18a (photograph of the front of the Presto card) and Exhibit 18b (photograph of the back of the presto card). [22] Exhibit 24 [23] At trial, Ms. Matte was qualified as an expert in bodily fluid identification, and DNA analysis and interpretation, including deposition, transfer and persistence of bodily fluids and DNA. [24] Exhibit 26: Biology Report 1, Melinda Matte, June 27, 2022 [25] The report cautioned that the terms male and female refer to biological sex, as determined from DNA testing, and do not necessarily reflect the gender identities of the persons to whom the profiles belong: Exhibit 26 at p. 3. [26] Exhibit 27: Biology Report 2, Melinda Matte, November 25, 2022 [27] 🇧🇸 [28] Exhibits 23a, 23b and 23c [29] Exhibits 19c and 19d [30] Exhibits 6b to 6f, but particularly Exhibit 6c [31] Exhibits 22a to 22f [32] Exhibits 7b and 7c [33] R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Villaroman, 2016 SCC 33 [34] David Watt, Manual of Criminal Evidence, (Toronto: Thomson Reuters Canada, 2019) §9.01 [35] R. v. Villaroman, supra at ¶26-27 and ¶29 [36] Supra at ¶37-38. See also R. v. S.B.1, 2018 ONCA 807 at ¶122-125 and ¶131-133 and R. v. Petrolo, 2021 ONCA 498 at ¶20-22. [37] R. v. Villaroman, supra at ¶30 [38] Ibid at ¶41 [39] R. v. H.C., 2009 ONCA 56 at ¶41 [40] R. v. J.M., 2021 BCCA 263; David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment”, 22 Can. Crim. L. Rev. 31 at p. 64-68 [41] (1991), , 63 C.C.C. (3d) 397 [42] See, for example, Exhibit 2 at 1:54:10 and Exhibit 13 at 1:55:53. [43] There was no evidence that the assailant’s waistband was unfastened. The complainant testified that the stranger’s hand was shoved down into his underwear. [44] Criminal Code, s.265(1) [45] Supra at ¶11 [46] R. v. Ewanchuk, 1999 SCC 711 at ¶36 [47] R. v. J.A., 2011 SCC 28 at ¶31, ¶34, ¶39, ¶42, and ¶66 [48] Criminal Code, s. 273.1(1.1) [49] R. v. Ewanchuk, supra at ¶26-30 [50] Criminal Code, s. 273.1(2) [51] See, for example, R. v. Johnson, 2023 ONCA 120 at ¶7-16 and R. v. Bakal, 2023 ONCA 177 at ¶30-40. [52] 2023 ABKB 226 at ¶68-69 [53] R. v. Rowe, 2021 ONCA 684 at ¶32-35 [54] Ibid at ¶42 [55] See, for example, Watt’s Manual of Criminal Evidence 2023, Thomson Reuters Canada Limited at §28.02. [56] Exhibits 20 and 21 [57] R. v. Bradshaw, 2017 SCC 35 at ¶¶26, 30-31, 39-40 [58] Ibid at ¶39 [59] 2013 SCC 71 at ¶63-67 [60] See R. v. Keats, 2016 NSCA 94 at ¶108-125 [61] Ibid at ¶110 [62] , [1996] 3 S.C.R. 1197 at ¶28-32 [63] R. v. Villaroman, supra at ¶¶22, 24-25, 37-38, 41. See also R. v. Vernelus, 2022 SCC 53; R. v. Baykal, 2023 ONCA 177 at ¶32-36; R. v. Petrolo, supra at ¶20-22; R. v. S.B.1, supra at ¶122-125 and ¶131-133. [64] R. v. S.B.1, supra at ¶134