ONTARIO YOUTH COURT OF JUSTICE

WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-01-06
COURT FILE No.: Toronto #23-Y4810977

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.B. (A Young Person)

Judgment

Before Justice Brock Jones

Trial Heard on October 15-17, 28, and December 19, 2024
Written Reasons released on January 6, 2025

E. Stimec — counsel for the Crown
J. Pyzer — counsel for A.B.

I. Introduction

[1] A.B., a young person, was charged with sexual assault with a weapon (to wit: a knife), sexual assault – choking, and sexual assault against Ms. X.X.[1] The Crown proceeded by indictment. The central issue in this case was the identity of the perpetrator.

[2] The case against A.B. was fraught with difficulties from its inception. He did not match the description of the suspect responsible for these offences in a material way. Even his arrest was shrouded in confusion, as the officers investigating the offences were initially unsure if they had located the correct suspect. Ten months after he was charged, results were obtained from the Centre of Forensic Sciences (“CFS”) regarding a male DNA profile constructed from a bodily fluid sample deposited on the victim following the assault. A.B. was excluded as the source of this profile.

[3] Despite this exculpatory evidence, the Crown chose to proceed with the prosecution. I acquitted the young person immediately after the trial concluded on December 19, 2024, and provided oral reasons. In these written reasons, I explain in greater detail why the Crown could not prove the central issue of the suspect's identity beyond a reasonable doubt.

II. Summary Of The Case For The Crown

[4] Ms. X.X. was a sex worker in downtown Toronto. She advertised her services for sale on the internet. She provided interested customers with various means to communicate with her. She was 25 years old when she testified.

[5] On June 25, 2023, she received communications from someone named “David” on WhatsApp.[2] The messages had a phone number associated with them. They negotiated a price for certain services. These communications took place at approximately 5-6 p.m. Later that day, she took an Uber to the address he provided.

[6] She arrived at approximately 10:03 p.m. She proceeded to the customer’s apartment and entered. He met her just inside the front door.

[7] He took her to a bedroom and sat down on the bed. She expected to be paid upfront. He did not have the money she was promised. Very quickly, he assaulted her. He held her down on the bed against her will. He placed his hand on her neck and choked her with tremendous force. He had a knife with a red handle. The blade was five to six inches long.

[8] He told her to “shut up” repeatedly. She struggled at first but became subdued when he wielded the knife in a threatening manner. At one point he warned her, “Do you want me to beat you up?”

[9] The man then sexually assaulted her. I will not describe the details of the assault in this judgment to preserve her dignity, as it is unnecessary to explain my conclusions. Briefly stated the sexual assault involved him forcing his fingers and penis inside her vagina. He placed his hands over other parts of her body. The parties did not dispute that these actions established the charged offences' essential elements.

[10] She was not sure if he used a condom. The trauma overwhelmed her. She felt like she fell into a dissociative state.

[11] Ms. X.X. wore glasses, and they fell off during the assault. This greatly diminished her ability to see her attacker and discern any details of his appearance. There was low light, and it was “pretty dark.” She could describe him as a black male, 5’5” or 5’6” tall, a “bit muscular,” with a wide face containing high cheekbones and freckles or acne scars on his face. He had black hair with short twists or dreadlocks. She estimated he was in his mid or late 20s.

[12] She believed the man ejaculated at some point because she felt his penis become flaccid. After he finished his assault, he allowed her to leave. She took an Uber home and saw her partner. She did not report the assault until the next day. The police interviewed her, and she attended at Women’s College Hospital. She was seen by a sexual assault nurse who completed a sexual assault evidence kit (“SAEK”).

[13] Before the assault, she noticed someone else was inside the apartment as well. That person was down the hall, past the kitchen. The person was at least 5’ tall, with short hair and darker skin. They appeared to look out of a room’s doorway.

[14] Ms. X.X. testified in a separate room via a video link during the trial. She could not see A.B. She was never asked to identify him in court as her attacker.

[15] The Crown next called several police officers to testify, and the parties presented some agreed statements of fact.

[16] PC Sirbos and PC Kim attended the address where the sexual assault occurred on June 27, 2023, just after 8 a.m. They were allowed to enter the apartment. There, they located A.B., a teenage boy of 16 years. They also located his mother, another older woman, and another young male approximately the same age as A.B. The Crown played the body-worn camera (“BWC”) footage of PC Kim, which captured in clear video the appearances of everyone in the apartment.

[17] Eventually, A.B. was arrested based, in part, on the description of the suspect provided by Ms. X.X. The arrest was made by PC Kim, who was never called to testify.

[18] In cross-examination, PC Sirbos agreed it took him and his partner some time to determine who to arrest. That was because they were faced with a confusing situation when they arrived. Assuming the suspect was one of the people in the apartment, more than one person there generally matched the description. PC Sirbos agreed that nothing really separated either of the young males in terms of their resemblance to the suspect’s description other than A.B. being more “muscular” in his subjective assessment and his height appearing to be closer to the 5’5” to 5’6” range. No one clarified the height of the other male person.

[19] PC Sirbos agreed that neither he nor his partner made any effort to determine who normally resided in the apartment. When asked if he felt A.B. looked like someone in his late 20s, he responded, “Age was not at the forefront of my mind.” He could not explain why PC Kim decided to arrest A.B. or what “tipped the scales.” He simply did not remember.

[20] A.B. can be seen using an iPhone in the BWC footage. That phone was subsequently seized by the police and searched pursuant to a search warrant. A forensic examination revealed that a WhatsApp account on the phone had the same phone number associated with it that Ms. X.X. said was used to communicate with her. Some of the messages retrieved from this phone appeared to confirm the suspect used it to send her messages before she arrived at the apartment on June 23, 2023. The phone’s GPS data revealed it was present at the apartment during the time of the assault, or very close nearby.

[21] An officer photographed the apartment on June 27, 2023. In those photographs, a knife with a red handle is visible in the kitchen.

[22] Cassandra Henry, a sexual assault nurse examiner at Women’s College Hospital, examined Ms. X.X. around 11 pm on June 26, 2023. She noticed swelling on Ms. X.X.’s neck and she appeared to have difficulty moving her neck due to pain. Swabs were taken from different parts of her body as part of the completion of a SAEK.

[23] Three biology reports were filed on consent from a forensic biologist at the CFS. The first report dated November 21, 2023, and the second report, dated February 5, 2024, included information that Ms. Henry took a swab from Ms. X.X.’s external genitalia during the collection of samples for the SAEK. That swab sample was tested for DNA. A mixture of DNA from Ms. X.X., her partner, and a third unknown male person was located.[3]

[24] A third biology report, dated April 15, 2024, compared this DNA profile to a known sample of DNA from A.B. He was excluded as a contributor to this sample.

III. Positions of the Parties

[25] Mr. Stimec submits the case is “overwhelming.” Ms. X.X.’s testimony was confirmed by several features of the police investigation, including the extraction reports from A.B.’s phone, and his presence at the crime scene. He matches the suspect’s description. His status as a teenager does not matter. If Ms. X.X. was mistaken about the suspect’s age that can be explained by the fact people often make errors of this nature, or perhaps the poor conditions of visibility she faced during a traumatic experience rendered it difficult to make accurate observations.

[26] He further submits that the DNA evidence is not a significant hurdle for the prosecution. The suspect may have used a condom, which could explain the lack of presence of his DNA at the time the SAEK was processed. I will return to this feature of the Crown’s arguments.

[27] Mr. Pyzer submits that even if the only issue I focus on is the identity of the suspect, the Crown’s case is flawed. His client does not match the suspect’s description in material ways, including that he is far too young. In addition, the DNA evidence points to another person as the suspect.

[28] Mr. Pyzer also argued that the Crown’s reliance on his client’s phone as a source of corroborative evidence is misguided. That does not implicate A.B. as the person who assaulted Ms. X.X., because it is unknown who was residing at the residence when the assault occurred. The Crown only introduced evidence of who was located there by the investigating officers nearly two days later. A phone can be used by someone other than its owner. Mr. Pyzer also asked me to consider that some of the messages sent to Ms. X.X. also suggest it was an adult responsible because they contained references to and pictures of alcohol.

IV. Law and Analysis

[29] A.B. is presumed innocent. No one identified him in court as the person who sexually assaulted Ms. X.X. This case is about the identity of the suspect. The prosecution will fail unless the only reasonable inference capable of being drawn from the facts is that A.B. was the man who sexually assaulted Ms. X.X.: see: R. v. Villaroman, 2016 SCC 33, paras. 37-38; R. v. McLetchie, 2011 ONSC 1440, para. 72.

[30] A trial judge must approach eye-witness identification evidence with caution due to its well-recognized frailties: see R. v. A.W., 2024 ONCA 564, paras. 26-29. In R. v. Hay, 2013 SCC 61, para. 41, the Supreme Court of Canada described the duty of a trial judge to prevent a jury from convicting on unreliable eye-witness identification evidence (emphasis added):

Although the duty to assess the credibility and weight of an eyewitness’ evidence sits with the jury and, in some circumstances, the testimony of one eyewitness will support a conviction, the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt. In other words, a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror; see R. v. Arcuri, 2001 SCC 54, paras. 21-25; R. v. Reitsma, rev’g (1997), 1997 3607 (BC CA); R. v. Zurowski, 2004 SCC 72; United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080. Indeed, where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict (Arcuri, at para. 21).

[31] In this case, the Crown did not rely upon eye-witness identification evidence, but rather eye-witness description evidence. That evidence is subject to the same frailties as eye-witness identification evidence: see R. v. Dosanjh, 2022 ONCA 689, paras. 34-36.

[32] The Crown’s theory of its case rested on the court's conclusion that A.B. resembled the perpetrator. However, as explained by Justice Code in McLetchie at para. 72:

It is settled law that evidence of a mere resemblance or similarity in appearance, as between the accused and the perpetrator of an offence, amounts to no evidence of identification standing alone. However, evidence of a resemblance, when combined with other inculpatory evidence, can amount to proof of identification. The existence of dissimilar features, as between the description provided of the perpetrator and the accused, can reduce evidence of identification to evidence of a mere resemblance. See: Chartier v. A-G Quebec; R. v. Boucher et al; R. v. Rybak, 2008 ONCA 354; R. v. Brown, 2009 ONCA 563.

[33] A resemblance between A.B. and the suspect is, therefore, insufficient. Decades of jurisprudence have established this basic principle. Furthermore, material, dissimilar features between the description of the perpetrator and the accused will be fatal to the Crown’s case without other confirmatory evidence: see R. v. Grant, 2022 ONCA 337, paras. 83-87.

[34] The prosecution was thus always tainted by a fundamental problem. No one could review the BWC footage of A.B. taken on June 27, 2023, and reasonably conclude he might be a man in his late 20s. He looked exactly like what he was – a teenage boy. That was the only evidence I had of his appearance at the time other than some RICI (arrest) photos that were made exhibits. Those also capture his youthful appearance. The confusion that befell the officers when deciding whether to make an arrest resulted from A.B. not matching this essential component of the suspect’s description. Their confusion was understandable, and the same issue pervades this trial.

[35] PC Sirbos’ testimony that he wasn’t “thinking about age” when debating whether to make an arrest is not worthy of belief. He was thinking about age and became indecisive when he arrived at A.B.’s residence. He was unable to locate an adult male, as he expected. My observations of A.B. in the courtroom, nearly 16 months after this incident, are that he still looks his age. It defies belief that someone would have believed he was an adult approaching 30. While he has minor acne on his cheeks in the RICI photos, he does not have freckles or noticeable acne scars. PC Sirbos agreed that he did not notice freckles or acne scars on A.B. at the time of his arrest.

[36] A.B. was a black male with a similar hairstyle who was found in the apartment two days after the assault. PC Sirbos stated that A.B.’s height was a factor he considered, too, as the suspect was described as approximately 5’6”. However, I did not hear evidence of A.B.’s height on June 25, 2023, or even what PC Sirbos assessed it to be specifically. I cannot accurately discern his height from the BWC footage. Another officer, PC Power, wrote in her notebook that the suspect’s height may have been reported as closer to 5’7”.

[37] When I asked Mr. Stimec about these discrepancies, he did not respond convincingly. He stated that A.B. was certainly not a “pre-pubescent boy” and could be confused for a man in his 20s. He submits A.B. otherwise generally matched the suspect description. Ultimately, whether A.B. did or did not match the suspect description is a factual issue for me to resolve. I find he did not match the suspect description in material ways. I reject Mr. Stimec’s conclusory arguments, which are plainly at odds with the evidence.

[38] Ms. X.X. admitted she observed the suspect in poor lighting, and her glasses were knocked off her face for most of her observations. It was a highly stressful situation, and she became “disassociated” from what was happening to her. She focused on the knife and feared for her life. She agreed that many of the details were difficult to remember due to the passage of time and the trauma she experienced. Therefore, her evidence of the suspect’s physical descriptors was of questionable reliability and demanded strict scrutiny: see R. v. Mills, 2019 ONCA 940, paras. 184-216; R. v. Jack, 2013 ONCA 80, paras. 15, 26; R. v. Woodard, 2009 MBCA 42, para. 31.

[39] That is not to say her evidence was in any way lacking in credibility. I found her to be a careful and compelling witness. However, credibility and reliability are distinct matters for a trial court to assess.

[40] Worryingly, the officers took no investigative steps to determine who else lived at this address, regularly or occasionally, to determine who otherwise might be a suspect. No one testified as to who owns or rents the apartment and who lives in each room. Indeed, no one testified that A.B. lived there, had personal belongings there, or that one of the bedrooms belonged to him. It appears these facts were simply assumed. The BWC footage demonstrates that the apartment had several occupants. The living room was very cluttered with furniture and assorted possessions. I am left to conclude that the officers believed A.B. was arrestable on the very thin basis that he bore some similarities to the suspect and was found in a common area of the apartment two days after the offences occurred.

[41] It is worth highlighting that the decision to arrest A.B. required the officers to compare him to another black male in the apartment. It took them over half an hour to decide who should be arrested. I was never informed what made A.B. the more attractive potential suspect from PC Kim’s standpoint, who was the officer who effected the arrest. I also did not hear if this other person was later investigated or excluded as a possible suspect. He, too, generally matched the suspect’s description and had a mobile phone. My observations of the BWC footage are that there is little to distinguish these two individuals from someone unfamiliar with them. Their skin colour, hair, and general build are similar. Their heights appeared roughly similar.

[42] These factors cast a shadow on whether there were reasonable and probable grounds to arrest A.B. The same concerns are present before me as the trial judge. The lack of any meaningful evidence about the regular occupants of the apartment, whether A.B. actually lived there as a matter of fact, and the presence of a plausible alternative suspect all serve to compromise the proposition that the sole reasonable inference available on the whole of the evidence is that A.B. must have been the perpetrator.

[43] Mr. Stimec pointed to A.B.’s iPhone and his presence at the same location where the sexual assault occurred as sources of confirmatory evidence of the suspect’s identity. Circumstantial evidence can sometimes be of sufficient probative value to support even otherwise unreasonable identification evidence: see R. v. Wurtz, 2024 SKCA 16, paras. 23-27; R. v. Sandoval-Barillas, 2017 ABCA 154, para. 37, citing R. v. McCracken, 2016 ONCA 228. Ms. X.X. stated that the suspect contacted her through WhatsApp with the name “David” and a phone number she remembered. Through forensic identification, both identifiers were traced to A.B.’s phone, and some messages were likely part of this original WhatsApp conversation with the suspect. The iPhone’s Apple ID was in his name as well.

[44] This evidence demonstrates that the iPhone was used to communicate with Ms. X.X., but nothing else.[4] It does not necessarily mean that A.B. was the person using the phone to communicate with her before the assault, and it certainly does not establish that he was the man who assaulted her. I did not hear any evidence of who was present at the address where the assault occurred at the time of the assault or shortly beforehand, except from Ms. X.X. She could only identify her assailant and one other person whom she saw briefly. She did not venture into the entire apartment and was only there for, at most, half an hour.

[45] I do not know if the phone had a password or other security features to limit who could use it. Curiously, some of the messages Ms. X.X. recalled sending and receiving from the person who contacted her were not present in the extraction report either. The conversation that remained appeared to be incomplete. This leaves open the possibility some of the messages had been edited or deleted by someone before the police seized it.

[46] Portable phones may be borrowed by another user or used surreptitiously. While one inference available from this evidence is that A.B. used the phone to communicate with Ms. X.X., that inference falls apart in the face of the rest of the evidence in this case which overwhelmingly points to someone else as the suspect: see R. v. C.B., 2019 ONCA 380, paras. 69-72. Ms. X.X. was adamant that the suspect appeared to be in his 20s throughout her testimony and agreed that she informed the police of that fact when initially interviewed the day following the assault. She denied any suggestion the person who assaulted her appeared to be a child.

[47] The Crown presented no other identification evidence pointing to A.B. I did not hear that Ms. X.X. completed a photo lineup, for example, or that his fingerprints were on the knife or any other piece of property or relevant location. Nor did the Crown argue that he might have been a party to this offence, perhaps using his phone to set up the meeting for someone else.

[48] The lack of evidence about the knife warrants particular attention. I heard that an officer seized it but little else. I do not know if its measurements correspond to the suspect’s description of the knife used by her attacker. I do not know if any fingerprints were lifted from it. Ms. X.X. was never shown a picture of the knife and asked to identify if it was the weapon held against her. It may have been a regular kitchen knife unrelated to the attack. Or it may have had more significance as the suspect’s weapon.

[49] While A.B. was located at the same address where the assault occurred, it was over a day and a half later. He was not located in the bedroom where Ms. X.X. testified she was taken. As previously explained, I was presented with a paucity of evidence regarding this apartment and who normally resided there. Mere presence at the general scene of a crime after time has passed is of little assistance to the Crown in this case.

[50] With these frailties in mind, the case for the Crown became untenable after the introduction of the DNA evidence. A sample of bodily fluid obtained from Ms. X.X.’s exterior genitalia taken the day after the assault occurred provided an unknown male DNA profile for comparison purposes. A.B. was excluded as the source of this evidence. The only other source of male DNA located on the victim was attributable to her partner.[5]

[51] In response to this exculpatory evidence, Mr. Stimec argued that there was no reason to conclude the unknown male DNA profile was the “only one ever on [Ms. X.X.]” Nor did I hear evidence about how long DNA may remain on a body – perhaps it had been there for weeks, months or even longer. Mr. Stimec added that the suspect furthermore may have used a condom, and from that, I can conclude it’s possible his DNA would not have been found on Ms. X.X. In summary, the Crown’s position appeared to be that in the absence of a more robust challenge to the DNA evidence and Ms. X.X.’s testimony about a condom being used, A.B. cannot point to this DNA evidence as anything more than neutral.

[52] I utterly reject this argument. Ms. X.X.’s testimony about whether the assailant used a condom was inconsistent and unreliable. She conceded she simply did not remember and appeared to be making assumptions. She was quite forthright about these frailties in her memory.

[53] That evidentiary point aside, I find two features of this Crown argument troubling. First, the argument does not respect that it is the Crown’s onus to prove an accused is guilty and seems to suggest A.B. faced some onus to prove his innocence. He did not. If the Crown wanted to lead evidence about the DNA evidence in a more comprehensive manner, it had the opportunity to do so. I cannot speculate. A.B. need only point to the existence of reasonable doubt. At its core, Mr. Stimec’s argument would require me to conclude that the presence of an unknown male person’s DNA on the victim’s body the morning after the sexual assault occurred should somehow be dismissed as a source of exculpatory evidence. Even though the central issue in this trial was identity, and the victim’s testimony was that a grown man, not a teenager, committed this assault.

[54] Of greater concern is that if the Crown wished to rely upon evidence of Ms. X.X.’s sexual activity with other persons proximate to the sexual assault, it was required to bring an application pursuant to the common law principles articulated by the Supreme Court of Canada in R. v. Seaboyer: see R. v. Barton, 2019 SCC 33, para. 80.[6] As noted by Justice Goldstein in Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197, sex workers “receive little in the way of recognition or respect from our society”: see para. 11. Courts must not allow the trial process to exacerbate the stigma sex workers already face from their profession through myth-based assumptions and the resultant vulnerability that accompanies that stigmatization: see paras. 317-337 of Justice Goldstein’s decision, discussing the complex interplay of factors at the heart of this pressing social concern.

[55] In Barton, the appellant was charged with first-degree murder in the death of an Indigenous woman and sex worker. She was found dead in the bathroom of his hotel room. The Crown, in its opening address to the jury, referred to the deceased as a prostitute. It did not bring an application before the trial judge to determine if this evidence was admissible and would serve any lawful purpose. The majority of the court commented on the need for all justice system participants to take reasonable steps to address “systemic biases, prejudice and stereotypes” against sex workers: see para. 20. In a partial dissent, Justices Abella and Karakatsanis and C.J. Wagner noted that “biases against sex-trade workers can be ‘as invasive and elusive as they are corrosive’”: see para. 231.

[56] Unfortunately, the Crown invited me to draw negative, prejudicial inferences about Ms. X.X in a misguided effort to somehow detract from the exculpatory nature of the DNA evidence. We must do better, collectively, to root out terrible prejudices against sex workers. For Crown counsel, five years after the emphatic warnings from the Supreme Court of Canada in Barton, to implicitly rely upon such stereotypes is disappointing.

[57] While not raised by Mr. Stimec during closing submissions, out of an abundance of caution, I note that during the trial, Ms. X.X. referred to her surprise to learn that a “child raped her.” This did not bolster the Crown’s case on identification either. As I have explained, she was consistent that she observed a man “in his late 20s” assault her. That is what she told the police, and that was her testimony in court. However, after the police made an arrest, she explained that the officer had told her the accused's name and that this was a youth court proceeding.

[58] Her references to a “child raping her” show how her understanding of what happened to her was tainted by exposure to post-event information from the police and Crown Attorney’s office or Victim Services. She conflated her independent recollection that a grown man assaulted her and her subsequent knowledge that a child, A.B., was charged with the offences. What explained these utterances was that having learned a young person was charged and believing the police must have found the “right person,” she referred to A.B. as a child on the assumption that he was responsible. This does not somehow rehabilitate the case of the Crown. It is an example of a well-documented concern that witnesses' memories and perceptions of events can be distorted by exposure to other sources of information. See, for example, the Department of Justice’s online publication, “Innocence At Stake: The Need For Continued Vigilance And To Prevent Wrongful Convictions in Canada,” Chapter 3: Eyewitness Identification and Testimony.[7]

[59] I must consider all the evidence when deciding whether the inferences the Crown asks me to draw on the facts are reasonable. Drawing those inferences in this case would be dangerous. Not only does A.B. not match a key component of the suspect’s description, but the possibility of an alternative suspect has considerable support in the evidence. I emphasize the dearth of evidence about who resided at the address where the assault occurred. Fundamentally, the DNA results preclude the interpretation of the evidence the Crown has proposed.[8]

[60] No one could conclude beyond a reasonable doubt that A.B. committed the offences against Ms. X.X. As a result, I found A.B. not guilty.

V. The Role Of The Crown In Youth Prosecutions

[61] The youth criminal justice system is based on fundamentally different values and principles than the adult criminal justice system. It exists because Parliament has chosen to recognize young persons’ heightened vulnerability in dealing with the criminal justice system and their diminished moral culpability: see R. v. S.J.L., 2009 SCC 14, para. 62. It contains a variety of protections for young persons unavailable to adult accused persons due to an acknowledgment of their unique susceptibility to the negative collateral consequences associated with being a criminal defendant.

[62] For example, the Youth Criminal Justice Act prohibits the publication of a young person’s identity who was charged with a criminal offence (section 110) and places very strict restrictions on access to youth records (sections 118-129). These provisions ameliorate the negative effects of labelling a young person as a “criminal.” As stated by Binnie J. in FN (Re), 2000 SCC 35, para. 14:

Stigmatization or premature "labelling" of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy.

[63] In R. v. K.J.M, 2019 SCC 55, the Supreme Court of Canada emphasized that youth matters should proceed “expeditiously and in a “timely manner”: see paras. 51-55 and 72. Prolonged criminal proceedings “may have a greater psychological impact on a young person”: see para. 52. As the Supreme Court stated in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), “[a] few months in the life of a child, as compared to that of adults, may acquire great significance” (p. 206). Young persons addressing criminal charges are faced with increased “overall feelings of stress, anxiety, and (where applicable) loss of liberty”: K.J.M at para. 52.

[64] The police are empowered to lay criminal charges against young persons, and the Crown’s office is vested with the constitutional responsibility of choosing whether to prosecute them. I acknowledge the Crown’s discretion is broad, “ill-suited to judicial review,” and should not be subject to “routine second-guessing by the courts”: see R. v. T.V.; R. v. Anderson, 2014 SCC 41, para. 46. No one would dispute that crimes of sexual violence must be taken seriously regardless of the age of the perpetrator. The YCJA recognizes the heightened societal interest in prosecutions for these offences by making them eligible for custodial sentences when the act is otherwise focused on rehabilitation and reintegration: see YCJA section 39(1)(a).

[65] The offences committed against Ms. X.X. were particularly grave. There was a strong public interest in bringing the perpetrator to justice. As the Supreme Court held in R. v. Barton, 2019 SCC 33, “ending sexual violence against women is one of the more pressing challenges we face as a society”: see para. 1. Had the evidence supported the case against A.B., the Crown would have been entirely justified in prosecuting him.

[66] However, the decision to pursue charges against any defendant, especially a young person, carries a high ethical burden. In R. v. Kahsai, 2023 SCC 20, para. 55, the Supreme Court of Canada described the role of the Crown in criminal proceedings (my emphasis added). These values take on even greater importance in the youth criminal justice system, where the lives of children and their families are affected by every decision to prosecute:

The Crown also has considerable responsibility in ensuring trial fairness. As local ministers of justice and officers of the court, Crown counsel have a duty to preserve the fairness of the criminal justice system for all parties, including the accused, victims, and the public (see Ontario, Ministry of the Attorney General, Crown Prosecution Manual, last updated May 6, 2023 (online)). Because of the public and quasi-judicial dimension to the Crown’s role, their function is not adversarial or partisan in the traditional sense. Rather, it is driven by their purpose to advance the public interest (R. v. Cawthorne, 2016 SCC 32, para. 27). As famously expressed by Rand J. in Boucher v. The Queen, p. 23, the goal of the Crown is “not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.” The Crown must always act fairly, dispassionately, and with integrity, both in the courtroom and in all their dealings with the accused (R. v. Regan, 2002 SCC 12, para. 155, per Binnie J., dissenting, but not on this point). [9]

[67] I did not hear that any new investigative steps were taken after the DNA results were obtained. Those results served to potentially exonerate A.B. and were made available to the Crown on or about April 15, 2024. Yet the prosecution continued for another six months.

[68] It was logical that A.B. was investigated after Ms. X.X. reported the assault to the police. The Crown was entitled to take the time necessary to review its case against him carefully. Nevertheless, it remains unsettling that he was brought to trial in this manner after all the evidence and the absence of other evidence that could have been collected was considered.

[69] If A.B. was the wrong person to arrest, a dangerous suspect remains to be located. If there was a stronger case to be brought against him that might somehow have overcome the frailties I have identified, it should have been properly presented. If no such case exists, the trial was an exercise in futility, done with disregard for the lives of everyone affected by this tragedy.

[70] A.B. remained on strict bail conditions from his arrest to the conclusion of the trial. He and his family had to endure the agony of continuing to live with the stigma of these charges and the extreme financial and emotional pressures of having to prepare for a lengthy trial. I was informed they lost their housing during the nearly 18 months it took to complete the litigation. Every day of the proceeding, his mother sat anxiously behind him. He missed five days of school.

[71] Ms. X.X. repeated several times during her testimony that she was traumatized by these events. She referenced difficult experiences in her life that had already left her vulnerable by the time she was assaulted on June 25, 2023. She had to relive this terrible assault over two days in court.

[72] The human toll of a criminal prosecution should never be underestimated. In youth court, it is felt by the young persons themselves, their parents, and other family members who attend to support them. It is difficult to imagine a case that could have a “greater psychological impact” on a young person as described by the Supreme Court in K.J.M than this one. A.B. may carry this experience with him for the rest of his life.

[73] Respect for the administration of justice will be enhanced when those empowered to exercise their discretion do so reasonably and professionally while considering the hardships inflicted upon every person affected by the trial process: see R. v. Jordan, 2016 SCC 27, para. 138.

Released: January 6, 2025
Signed: Justice Brock Jones

Footnotes

[1] I am using fictitious initials to protect the identities of both A.B. and X.X.
[2] I have used a different, false name to avoid any potential for the young person to be identified.
[3] Other swabs were taken during the SAEK process on different parts of Ms. X.X.’s body. None of them produced a sample suitable for comparison purposes.
[4] I heard no evidence that Mr. X.X. went by the name “David,” which is not his given name.
[5] I was informed by counsel that A.B. provided a sample of his DNA for comparison purposes to the police on consent.
[6] I do not mean to presume for a moment that any such evidence even exists, as to do so would be itself a form of unlawful stereotyping.
[7] In R. v. Miaponoose, the Ontario Court of Appeal discussed the psychological phenomena of a witness “filling in” details, citing the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983): “Viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus, the final recreation of the event in the observer's mind may be quite different from reality.”
[8] I emphasize that the parties simply placed the biology reports before the court, including the expert’s conclusions concerning the DNA profiles, with no further context. The Crown did not call an expert to testify about the forms of DNA typing or interpretation applied in this case. I did not hear evidence about how DNA is deposited or transferred through human contact. Nor did I hear testimony regarding whether environmental factors should be considered. It was effectively an agreed statement of fact with respect to this evidence.
[9] My emphasis added.