Publication Ban Warning

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 09 27 COURT FILE No.: 22-81104114 Windsor, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

K. H.

Before: Justice Shannon L. Pollock

Heard on: September 4 and September 5, 2024 Reasons for Judgment Released on: September 27, 2024

Counsel: Andrea Harris..................................................................................... Counsel for the Crown Evan Weber.................................................................................. Counsel for the Defendant

Reasons for Judgment

Pollock J.:

[1] The defendant is charged with one (1) count of sexual assault with an allegation date between April 26 and April 27, 2022. It is alleged that he engaged in sexual contact with a female friend, A.R., which she could not consent to as she was not conscious or aware of the contact.

[2] In a criminal trial the burden of proof is always on the prosecution to prove all of the essential elements of an offence beyond a reasonable doubt. An accused is cloaked by the presumption of innocence. Reasonable doubt is a doubt based on reason and common sense. It is not a doubt based on sympathy or prejudice and it is not a far-fetched or frivolous doubt. It is not enough for a court to believe that an accused is probably guilty or more likely guilty than not. Reasonable doubt does not require an absolute certainty however it does fall much closer to absolute certainty than proof on a balance of probabilities.

[3] Even though there was no defence evidence called, I must still assess the evidence of the Crown and determine whether I am satisfied that the Crown has proven all of the essential elements of the offence beyond a reasonable doubt.

[4] The two (2) parties were friends. The defendant was also a friend of the complainant’s then boyfriend with whom she often stayed. At the time of the allegations, the complainant’s boyfriend was away for work. The complainant and the defendant spent two (2) days together at her boyfriend’s apartment consuming alcohol and playing video games, starting on the afternoon of Monday, April 25, 2022. The defendant stayed overnight on the couch after the two (2) consumed a forty (40) ounce bottle of vodka together and became intoxicated.

[5] The next morning the complainant woke the defendant up as he had indicated he needed to go to work. She testified that the defendant said he was too tired to go to work. The complainant went back to bed. She stated that the defendant woke her up in the early afternoon. He had purchased another bottle of alcohol for them to consume together.

[6] The second day was spent like the first, playing games, listening to music and consuming alcohol. The two (2) each had their own televisions on which they were playing video games separately. The defendant spent his time on the couch. The complainant was mostly sitting on the floor. On both days, the parties were also smoking marihuana. In addition, the complainant was taking pain killers.

[7] At around 9:00 pm, the complainant, who had been seated on the floor during their time together, laid down on the couch. She testified to telling the defendant that it was time for him to leave, that she was getting tired and would rather he not spend the night again. Her evidence was that she said this a few times and was irritated that the defendant was not responding or leaving. The complainant took some over-the-counter sleep medication to fall asleep. The medication kicked in before the defendant left and she fell asleep on the couch covered with a blanket and wearing the same clothing she had been wearing since the defendant arrived the day before. She stated she has never consumed this medication with alcohol before.

[8] The complainant woke up at 4:00 a.m. The defendant was gone. She felt very uncomfortable. Her pants, tights with an elastic waist, were down below her knees. She had not been wearing underwear. The blanket was at her feet. She was still lying on her stomach which was the position she had fallen asleep in. There was a wet spill on the floor near her with one of her boyfriend’s t-shirts on it. She texted the defendant to ask him what was on the floor and what was going on but did not get a response. She then took a cab back to her own building.

[9] The complainant’s evidence was that she did not shower between the Monday when the defendant arrived and the time of the alleged incident. She did not feel physically any different when she woke up. She had no injuries. She was not sore or irritated in her vaginal area.

[10] The complainant contacted the police on Thursday, April 28, 2022. On Friday, April 29th, the complainant provided a statement to the police and went to the Sexual Assault Treatment Centre where a nurse collected an external genitalia swab. A comparison sample was obtained from the defendant. Testing was performed by the Centre of Forensic Sciences (the “CFS”). This evidence went in on consent of the defence by way of two (2) biology reports authored by the CFS. The reports reveal that the external genitalia swab had DNA from the complainant and the defendant on it.

[11] It is the position of the defence that this case is more about a lack of evidence than it is about the evidence. The defence submits that the issue is whether the Crown has proven that something happened that amounts to a sexual assault. The defence submits that there is no evidence about what form the DNA evidence took and that a sexual assault is not the only possible reasonable inference for how the DNA got on the external genitalia swab. The defence submits the Crown has not proven that a sexual assault took place.

[12] It is the position of the Crown that the evidence that the complainant fell asleep in the presence of the defendant and woke up alone with her pants pulled down combined with the evidence of the defendant’s DNA on the swab of her external genitalia is proof that a sexual assault was committed. The Crown provided case law and submits that just because a complainant cannot explain the manner in which a sexual assault took place is not fatal.

[13] Taking judicial notice of something means relying on a fact that is not proven in evidence. The threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Find, 2001 SCC 32 at paragraph 48.

[14] Courts have ruled that triers of fact should not take judicial notice of matters which require scientific expert evidence to explain them. Many times, higher courts have ruled that expert evidence is required to provide evidence as it relates to various aspects surrounding DNA evidence.

[15] DNA evidence has been before the courts now for decades. In the case before me, there was an admission that DNA from the defendant was located on an external genitalia swab taken from the complainant two (2) days later. There is no evidence on the form of the DNA. The defence asks me to find that there are other possible and reasonable inferences other than a sexual assault occurring for how the defendant’s DNA ended up on the external genitalia swab. To do so, I would have to take judicial notice of a couple of factors.

[16] Applying the standard outlined by the Court in the Find case and considering the nature of what I am being asked to do, I conclude that I can take judicial notice of the fact that people deposit DNA in various forms which can include various bodily fluids as well as skin cells. Further, it is a well-known fact that DNA can be transferred from one place to another. In other words, the location in which DNA is found does not mean that it was put there by direct contact. I take judicial notice no further than these two (2) facts.

[17] I heard evidence that the defendant was present when the complainant fell asleep on the couch fully clothed. The evidence is that she woke up hours later with her pants pulled down past her knees. There is evidence that two (2) days later there was DNA belonging to the defendant swabbed from the complainant’s external genitalia.

[18] I also heard evidence that, other than feeling emotionally uncomfortable, the complainant felt nothing unusual physically. She did not have soreness, irritation or any injuries. There is a lack of evidence on the form of the DNA. I do not know if it was from skin cells, saliva, semen or some other bodily fluid. I do not know how the complainant’s pants were taken down from her waist.

[19] The case provided by the Crown is distinguishable from the case before me. In that case, there was evidence that the parties were seen unclothed together in the same room, the complainant had vaginal pain and there was an opinion that the defendant’s DNA in the form of sperm was located on both a rectal swab and an external genital swab.

[20] I have concerns with the reliability of the complainant’s evidence given the amount of alcohol she consumed along with marihuana, pain killers and a sleep aid. However, even accepting her evidence as it is, there is no evidence of how her pants were taken down. There is no evidence that sexual contact occurred.

[21] On the basis of the evidence before me, I do not know what and, if, anything happened that would amount to a criminal offence. While I am suspicious I am not convinced beyond a reasonable doubt, that a sexual assault occurred. I am not convinced beyond a reasonable doubt that there was contact of a sexual nature from the defendant towards the complainant. I simply do not know what happened.

[22] The defendant will be found not guilty.

Dated: September 27, 2024 Signed: Justice Shannon L. Pollock