ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-SA5075

DATE: 2015/07/09

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FRANCIS CHARRON

Lia Bramwell, for the Crown

Anne Marie Morphew, for the Accused

HEARD: March 9 to 13, 16, 17 and June 22 and 23, 2015

reasons for decision

C. mckinnon j.

[1] The accused, Francis Charron, is charged that on June 27, 1997 he committed the offences of sexual interference, invitation to sexual touching, sexual assault, uttering a threat to cause death and forcible confinement contrary to sections 151, 152, 271, 264.1 and 279(2) of the Criminal Code of Canada.

The Crown Evidence

[2] On June 27, 1997 the complainant A.L. was 11 years old. She lived at both her father’s and mother’s residences. Her parents were amicably separated. She alternated between the two homes on a weekly basis. June 27, 1997 was a warm summer night close to the summer solstice. Her mother was in the midst of a move. A.L. felt that she was in the way so she decided to go to her father’s residence. Her mother lived to the northeast of Hampton Park and her father lived to the southwest.

[3] Hampton Park is a large, mature, heavily treed city park in the west end of Ottawa and is bounded by Island Park drive on the east, Iona Street on the north, and Buell Street and Parkview Road on the west. Its southern extremity reaches to the Queensway near Merivale Road and Kirkwood Avenue. Its area, as is evident from a map, fills the space of approximately twelve city blocks. The park is speckled with pathways and bikeways. Portions of the park are lit by lamp posts. A.L. was totally familiar with the park and frequented it regularly.

[4] A.L.’s evidence was available both by a videotape taken on the morning of June 29, 1997 in the Ottawa Police station and by her evidence at this trial. A.L. is now 29 years of age.

[5] June 27 was a Friday. On the evening in question, dusk was approaching at the time A.L. began the bike ride to her father’s house. She noticed a man on a bicycle at Byron Avenue near Island Park Drive. A short time later, as she entered Hampton Park from Iona Street at the north entrance to the park and biked up a hill on the most westerly side of Hampton Park, she once again saw the same man approach her.

[6] The man was wearing shorts with pockets. He lifted up the bottom of his shorts to expose his penis and told her he wanted A.L. to feel it. A.L. began to cry. The man covered her mouth with his hand and told her to be quiet. He told her not to cry or scream or that he would kill her. He put his hands down A.L.’s overalls and felt her vagina. He then took her to the bushes located near the pathway where they had been bicycling. There are lamp posts located on that particular pathway.

[7] During her testimony at trial, A.L. pointed to the location where the incident occurred by marking the area on a map with a star. That point is on a bike path running along the western side of Hampton Park starting on the north side and close to the Buell Street exit located roughly halfway between the north and south ends of the park on the western border.

[8] The man appeared to be in his 30’s and stood about 5’ 10”. He was wearing a hat and sunglasses. He had a mustache and was riding a mountain bike. He had dirty blond or orange hair. He was wearing a dark coloured shirt. His shorts were also dark coloured. When the man took A.L. to the bushes, she asked the man whether he had a gun. He told her that he did. She never saw a gun but believed that he had one. He told her that if she screamed he would kill her and so she complied with his demands. As they walked towards the bushes, the man said “Don’t run away”.

[9] Once in the bushes, the man made A.L. lie on her back on the ground on top of his t-shirt which he had removed and laid on the ground. He forced her to perform fellatio on him. He put his mouth and his hands on her vagina. His penis was forcefully in her mouth such that it was uncomfortable. She was having difficulty breathing and did not have a clear airway. He was touching her vagina with his mouth and his hands during the time his penis was in her mouth. He was telling her to “suck harder” while his penis was in her mouth. He moved away from her just before ejaculating. After ejaculating he once again returned to where A.L. was located and put his hands and his mouth on her vagina. In A.L.’s video statement, A.L. said that the man was “peeing” but corrected that in her testimony given before this court and testified that he had ejaculated. He did so by rubbing his penis with his hand.

[10] During the attack, a black dog came into the area and a person walked by. The man told her to stop performing fellatio on him and be quiet. The man shooed the dog away. When the dog left he once again demanded that A.L. perform fellatio on him to the point that she was “choking a bit.”

[11] After ejaculating, and again touching A.L.’s vagina with his mouth and hands, the man stopped and stood up, got dressed and told A.L. to count to a number that she cannot remember. He then simply rode off down the hill on his bicycle. A.L. was wearing a bathing suit under her t-shirt and overalls. She put on her clothes.

[12] Anne Bilodeau is a retired teacher and social worker. On June 27, 1997 she was walking her black Labrador dog in Hampton Park. She remembers it well because it was the night of her daughter’s 21st birthday. It was a lovely warm evening. She was in the park at approximately 9:00 or 9:15 p.m., having entered at perhaps 8:45 p.m., which was later than usual for her evening walk. Her dog was off leash as soon as she came through the park gates. The dog would go exploring, mainly looking for other dogs. While it was getting dark in the park, “it was not very dark yet.” The lamp lights on the pathway may have been on, but she is unsure. She had no trouble seeing. She recalled that there were fewer people in the park than she was accustomed to seeing but that was likely because it was later than she would normally be in the park walking her dog.

[13] She was nearing the end of her walk 20 to 30 minutes after entering the park and travelling up the hill on the bike path that turns right towards Buell Street and heads west out of the park gate when she heard crying. She saw a young girl who was “not just crying, but clearly very upset.” The girl had a bike with her and Ms. Bilodeau thought at first that the girl had fallen off her bike. The child appeared to be about 10 years old.

[14] The little girl was “practically incoherent.” It was clear that something bad had happened to her. She was sobbing and trying to talk. Ms. Bilodeau “did not want to pepper her with questions.” The girl said she lived close by, and said something about someone grabbing her, being in the bushes and “her mouth being on something.”

[15] She took the child to a house on Parkview Road. The child continued sobbing until she got to the house. Ms. Bilodeau did not see any apparent injuries. Once she and the little girl arrived at the corner of the front yard of the house, the girl dropped her bike and ran into the house.

[16] Ms. Bilodeau could hear crying and yelling from inside the house. The windows were open. She heard a man say “Call the police” and “Which way did he go?” She then saw a man run past her into the park. Ms. Bilodeau waited a few minutes and then walked back to the park but did not see the man again. Eventually, Ms. Bilodeau met up with the man and introduced herself, after which she returned to her home. At no point did she see any people in the bushes in the park. She testified that she would not have been able to see very deeply into the forested areas.

[17] R.L. is A.L.’s father. He did not have any memory of what A.L. was wearing on the evening she was attacked until he saw photos in court. After seeing the photos, he recalled that A.L. was wearing a white t-shirt and bib overalls that did not go down to her ankles. He immediately recognized the bib overalls and the bathing suit as being the clothing that he had seen in his home on the night of June 27, 1997. They were part of A.L.’s wardrobe. He recalled A.L. being in the overalls and her bathing suit that night. He does not believe he saw the bathing suit initially so believes it was covered when he first saw A.L. A.L. was wearing a white t-shirt from Cozumel, Mexico. R.L. owned a residence in Cozumel and always purchased t-shirts for his children and friends so he believed the Cozumel t-shirt seen in the photos was a t-shirt he would have purchased. At the time he was living with a girlfriend, S.M. He recalled running into Hampton Park in an attempt to find his daughter’s attacker, but was unsuccessful in finding the man. He recalls speaking to a female police officer when he returned to the house. He confirmed that he always purchased new clothes for his children and that all laundry was done in the home.

[18] R.L.’s girlfriend, S.M., went into the bathroom with A.L. when A.L. came into the house after the attack. A.L. was “repeatedly washing her face and rinsing her mouth.” She cannot remember A.L. changing out of the clothes she was wearing. She recalled A.L. wearing a light coloured t-shirt. She believed it was white. She recalls A.L.’s denim jeans that were “ripped or ragged style.” She believed they were full length. She recalled the police asking for the articles of clothing that A.L. was wearing. She believes that a t-shirt, jeans and underwear were provided to the police. In any event, it would have been whatever A.L. was wearing when she came into the house. She was shown a photo of the Cozumel t-shirt and definitely remembered A.L. wearing that specific t-shirt during June 1997. It was the only t-shirt from Mexico that she recalls A.L. wearing.

[19] J.L. is A.L.’s mother. She recalled that her ex-husband R.L. came to her home on the night of June 27, 1997 and told her that A.L. had been sexually assaulted. She “freaked out” and became very emotional. J.L. has very little memory of the night. She recalls that she was in the middle of a move and that A.L. had decided to go to her father’s so as not to be in the way. She has no recollection of the clothes that A.L. wore or when she left her home to go to her father’s. She always purchased new clothes for her children and the laundry was always done at her home.

[20] Detective Valerie Curcio was a patrol officer in the west end of Ottawa in June 1997. She responded to a call made by R.L. and S.M. to go to R.L.’s house. When she arrived R.L. was on the street. She went into the home and saw A.L., who was with another woman. She took notes of what A.L. told her had happened. She took notes of the description A.L. gave of her assailant. She took control of clothing given to her by A.L.’s father, R.L. She does not recall what time R.L. obtained the clothing from A.L. She recalls going with A.L. to the park where A.L. pointed out the place where she had been assaulted. She does not recall whether A.L. had changed clothing before going to the park. A.L. told Detective Curcio what she had been wearing, which were the clothes that R.L. gave her. She recalls being “impressed” that R.L. had the foresight to put each piece of clothing into a separate plastic bag. The bags contained a t-shirt, overalls and a bathing suit. She turned these bags over to Sergeant Robert Kurus and also pointed out to him and Sergeant Ron Bird the location in the park A.L. had identified as being the place where the assault occurred.

[21] Sergeant Robert Kurus has been with the Ottawa Police Service for 28 years and in 1997 worked in the Forensic Identification section where he worked for 12 years, beginning in 1996. Sergeant Kurus assembled a photo book documenting the area in question where the police investigation was focused. This was on a central pathway heading towards Buell Street, 60 meters north of the Buell Street entrance to Hampton Park, near the third lamp post from the entrance. This is on the northwest side of Hampton Park. He testified that he and Sergeant Ron Bird attended the scene with Detective Valerie Curcio who had met with A.L. shortly after the attack upon her. Detective Curcio gave Sergeant Kurus three separate bags, each having one item of clothing. He secured the clothing in the Forensic Identification Section of the Ottawa Police building before returning to Hampton Park at approximately 12:50 a.m. on June 28, 1997.

[22] When he attended at the scene in Hampton Park, being the location pointed out to Detective Curcio by A.L., he noted that “there were a few areas that had been trampled down.” He examined the area with ultraviolet light but did not see anything fluorescing. He noted that semen can fluoresce under UV light. However, there was a good deal of obstruction due to grasses, bushes and trees in the area. If semen was obstructed, he would be unable to find it. He also examined the area with white light in order to do an overall search but did not locate any physical evidence. Photographs were taken of the search area.

[23] At roughly the same time that Detective Curcio turned over the clothing worn by A.L., Constable Sharma of the Ottawa Police Service turned over clothing worn by a suspect that police were investigating in connection with the attack on A.L. Constable Sharma also turned over a bicycle ridden by the suspect. Sergeant Kurus testified that the clothing and bicycle were kept in a completely separate room from the clothing turned over from A.L. The owner of the clothing and bicycle, D.E., was later eliminated as a suspect. His physical description did not match that provided by A.L. and he had an ironclad alibi for the night in question.

[24] Photographs taken by Sergeant Kurus during the early morning hours of June 28, 1997 show three areas of depressed vegetation in the area that was searched situated behind a lamp post on the western pathway. At 9:20 a.m. on the following morning, Sergeant Kurus returned with Sergeant Bird and took further photographs. These photographs all document an area in the northwest portion of Hampton Park.

[25] Sergeant Kurus testified that he examined A.L.’s clothing in accordance with all the appropriate practices and protocols; namely, he would wear new gloves when examining each item, sequentially. He decontaminated his work surface. Exhibits were kept in a locked office to which only Identification Section members had access.

[26] On June 30, 1997, he submitted the t-shirt worn by A.L. and the kit obtained from the sexual assault examination conducted on A.L. to the RCMP Laboratory by handing them over directly to Anne Elizabeth Charland of the RCMP Forensic Biology Section. The remaining items of clothing were sent to the property room.

[27] On September 23, 1999, he received some items back from Anne Elizabeth Charland, including the t-shirt. These items were stored in a secure locker in the Forensic Identification section until September 7, 2007 when he sent them to the property unit.

[28] On July 23, 2003, the DNA extracts that had been prepared by Anne Elizabeth Charland were sent back to Sergeant Kurus, who placed them in a freezer located in the Forensic Identification section.

[29] On September 5, 2013 the DNA extracts were once again returned to the RCMP Laboratory personally by Sergeant Kurus together with the t-shirt worn by A.L. during the attack, and the sample of the DNA of the accused that had been taken from the accused pursuant to a warrant.

[30] Anne Elizabeth Charland is a Senior Reporting Scientist at the RCMP Biology section, Central Forensic Laboratory. All her work, as well as her co-workers, has been scrupulously documented and made exhibits in the trial.

[31] On July 11, 1997, she examined the exhibits provided by Sergeant Kurus to her on June 30, 1997. On the Cozumel t-shirt that A.L. had been wearing during the attack, Ms. Charland located semen on the front of the left shoulder, the upper chest area and bottom right and centre of the t-shirt. She made a cutting from the bottom right center area and submitted that cutting to Isabel Trudel of the Biology Section with the task of generating a DNA profile. The t-shirt had been marked by Sergeant Kurus as exhibit BK-1.

[32] Ms. Charland also received an additional exhibit, itemized RJ-1, from Sergeant Bird. This exhibit consisted of a swab taken from semen belonging to R.C., a suspect in the case. She confirmed that RJ-1 contained semen and sent it to Isabel Trudel to generate a DNA profile.

[33] She analysed the DNA profiles generated by Isabel Trudel for BK-1 and RJ-1 and reported her findings in a report dated January 29, 1999. She concluded that the DNA typing profile generated from the semen found on BK-1 (A.L.’s t-shirt) did not match the DNA typing profile generated from the semen on RJ-1 (the semen swab from R.C.). She concluded that the semen could not have originated from the same person. She confirmed that BK-1 consisted of a single source male donor. The quality of the DNA was “very good”, semen being a “rich” source of DNA. Exhibit RJ-1 was also from a single source male donor.

[34] Ms. Charland testified that in 2002, a new protocol for analysing DNA came into place with the creation of the National Crime Scene Index of the National DNA Databank of Canada. At that time, BK-1 was again subjected to a further analysis. An entirely new DNA profile was created and found with a process called “Profile Plus.” The profile was found to be entirely appropriate for uploading to the National Data Bank. The profile was of excellent quality.

[35] It is important to note that continuity was challenged by Ms. Morphew in respect of the DNA samples. As such, numerous witnesses were called to establish continuity. In particular, Isabel Trudel testified at length respecting her receipt of cuttings of BK-1 and her analysis of them and all the steps that she took in order to produce a DNA profile, including the protocols employed to avoid any potential contamination. At all times, the exhibits entrusted to her were locked in a separate section of the RCMP Laboratory. At every step of the process, she would change gowns and gloves. Her detailed evidence was transcribed verbatim. It serves no purpose to repeat it here.

[36] Suffice to say, I was highly impressed with the professionalism and knowledge of Ms. Trudel and her supervising scientist Ms. Charland. Both are dedicated professionals. The same can be said for Sergeant Kurus. I am completely satisfied that at no time was the DNA derived from BK-1 compromised in any manner whatsoever. At all times, the continuity of exhibit BK-1 was scrupulously protected.

[37] BK-1 was again subjected to analysis in 2013 when a new DNA profile was generated by Michelle Scott Mascioli, a Forensic Biologist at the RCMP Laboratory. A DNA profile was generated from BK-1 from the same extracts from BK-1 as were used by Isabel Trudel in 1998. At the same time, a DNA profile was generated from the extracts from CDW-1, a warrant sample taken from the accused Francis Charron.

[38] Ms. Mascioli, as in the case of Ms. Charland, relied on profiles generated by Jennifer Stewart of the RCMP Biology Section, whose work is completely documented and made an exhibit.

[39] Without getting into excruciating detail, it may be noted that there was some tiny amount of DNA found in one of the “re-agent blanks” which were used during the process of creating a DNA profile. Re-agent blanks should not contain DNA. The records demonstrate that this potential source of contamination was investigated and found to be below the threshold of raising any valid concern. What impressed me about the evidence relating to potential contamination was how very careful all RCMP personnel were in dealing with the DNA exhibits in order to ensure completely reliable findings.

[40] Ms. Mascioli found that the two profiles that had been generated from BK-1 and CDW-1 matched perfectly. Both were from single source male donors, which provides even greater comfort than in cases where there are mixed donors.

[41] The random match probability of some person other than the accused Francis Charron contributing to the DNA found on A.L.’s t-shirt is 1 in 74 billion.

[42] Ms. Mascioli was questioned as to whether semen could be deposited upon A.L.’s t-shirt in an indirect way. She agreed that it could, particularly if the semen was in a wet or liquid state. Hot sunny days with direct sunlight or rainy humid days will degrade DNA. If not exposed to heat or sunlight, it will be preserved longer. If semen did exist and A.L.’s body was to come into contact with it while wearing her t-shirt, it could well transfer to her t-shirt in such a manner.

The Evidence of Francis Charron

[43] The accused gave testimony. He is 47 years of age and was 29 years old in 1997. On June 10, 2013, he was convicted for sexual interference and jailed. Although not given in evidence, I presume that as a result of the statutory requirement to provide a DNA sample following a conviction for sexual interference, the DNA of the accused was uploaded into the Data Bank, thus creating a potential match with the 1997 DNA found in the semen on A.L.’s t-shirt, thus leading to the present charges.

[44] In June 1997, the accused was living in Ottawa at Holland Cross and Scott Street located in the west end of Ottawa. This is not far from Hampton Park. He lived in a bachelor apartment located in a condominium with a roommate named James Wesley. The accused slept in the living room and Mr. Wesley in the bedroom. The accused slept on a couch.

[45] He had moved to Ottawa in 1996 from Low, Québec and worked at a Nortel facility located at the corner of Merivale Road and Baseline Road. He worked in a cafeteria set aside for the employees of Nortel. He worked as a grill cook and dishwasher from 8:00 a.m. to 5:00 p.m., Monday to Friday. He began work in 1996 and stopped in 1998 when he got a new job with Discount Car and Truck Rentals. The accused is 6’2 with brownish blond hair. He testified that he suffers from eczema and that because he has scaly skin, he is shy to show it unless he is in his home base in Low, Québec, where there is “hardly anybody around.” He testified that although he does own shorts, he did not wear them in Ottawa due to shyness over his eczema.

[46] He testified that he owned a bike for two days after which it was stripped down and he did not replace it. He owned a 1995 Oldsmobile and got to work either by car or by bus. His roommate also had a bike but he never borrowed it because his roommate “was always using it.”

[47] He denied sexually assaulting A.L. He explained how he thought his DNA got on A.L. He explained that on every second or third Friday, there would be an after-work party held in the cafeteria for Nortel employees. Alcoholic beverages would be served. There were about five or six employees pouring drinks and serving food for the Nortel employees. He remembers himself, Frank and Kim, but not the names of the others. He said that Frank and Kim were “good friends” but he did not know their last names. Following the party he, Frank and Kim “wanted to go and shoot some pool.” Kim and Frank had been working at the cafeteria with the accused for about two months.

[48] After cleaning up the cafeteria, the three left at about 6:15 p.m. and went down the road to a bar. He does not remember the name of the bar. It was “off Kirkwood and Merivale Road.” They walked to this bar. They had a couple of beers but there were too many people lined up to play pool so they decided to leave. They walked towards the Westgate Shopping Centre, located near Merivale Road and Carling Avenue, just south of Hampton Park. They were going to catch a bus but then they saw a bar with pool tables, so they went in and played some pool. They had some more beers and started joking around, making sexual comments to each other while playing pool. He could not remember the name of the bar.

[49] The accused started hugging Kim. Frank was joking around and telling the accused and Kim to “get a room.” Eventually, they left and went across the road to the shopping centre in order to catch a bus. Frank left. The accused was talking to Kim. The bus did not come. The accused and Kim started kissing. This was at about 8:20 p.m. It was still light out. The accused asked Kim to have sex and she asked where. He suggested the bush behind the shopping centre, namely Hampton Park. When asked why the bush, he said that Kim had relatives at her place and he had his roommate at his place. He only had the couch and his roommate “would not appreciate him using his bedroom.” He reassured Kim that they would be private. They walked along Merivale Road and saw the bush on the other side of the Queensway and entered. He saw a bicycle path, a dirt road and a pathway. He was looking for “a bushy spot.”

[50] It was going on dusk. There were no lights in the area. He just walked into the bushy area and “found a good spot.” He started “making out” with Kim and they had sex. He was wearing his slacks and dropped them to his knees. Kim was wearing her work clothes. She wore a skirt. She was a good looking woman who was “tall.” She was 5’0 feet in height. He was not using a condom. He “grabbed her by the arse” and lifted her up. She thrust her legs around him. At times, he was leaning her against a tree and at times, he leaned against the tree. When he was about to ejaculate, he “spurt it all over the place… It shoots out onto the ground.” He wiped himself off “with a leaf or his pants” then left the bush. When he came out of the bush area, he was very close to the Queensway. They went back to the shopping centre and took different buses home.

[51] On the following Monday, he and Kim said nothing about the Friday encounter and never again talked about having sex. They did not date. He was asked if they were still friends, the accused said “Oh yeah” but never saw Kim or his friend Frank again. He does not know where they might be today.

[52] The accused stated that the incident occurred during the month of June 1997 and that it would have been a Friday night. “There was no snow on the ground.”

[53] Under cross-examination, the accused agreed with Ms. Bramwell that he was very anxious to have sex and would have sought out the first bushy area that he would come across on entering Hampton Park. He testified that he had never been to this park before. He was shown a map and asked to situate the place where he entered the park. The accused pointed to the extreme southeast end of the park. He agreed that he would have gone to the first available bushes. He said that the ground where he was having sex was flat with a few twigs. It may be noted that the area that A.L. pointed out where she was assaulted is covered with high grass with lamp posts situated along the pathway.

[54] The accused was adamant that there were no lights in the area where he found the bushy spot with Kim. He agreed that he did not want to go any deeper into the park because he wanted to have sex “as soon as he could” and also it was getting dark. He agreed that he went to the closest, safest bush that he could find. He agreed that he left the park immediately after and did not venture further into the park. He agreed that he did not ejaculate at any other place in the park. He agreed that his semen did not fall out of his penis at any other place in the park. He stated that the sexual comments between he and Kim began that evening while working. He was asked why he would not simply go across the street from where he was waiting for his bus to the Travelodge and said he “would never spend a hundred bucks just to have a quickie.”

[55] He placed the time as being a Friday in June 1997, because it was “one month” before he met his future wife Linda. There was some confusion in the evidence of the accused because he placed the time he met Linda as being one month before Christmas. He agreed that his hair was dirty blond when he was 29 years old and that he might have had a mustache. He said that Kim was wearing a skirt and simply pulled it up when they had sex. When asked her weight, he said he did not know and stated “I don’t have scale on me.” He confirmed that the area where they had sex was a flat dirt area.

Analysis

[56] Ms. Morphew agrees that there is no issue that A.L.’s evidence would support convictions on all counts in the indictment. Ms. Morphew submits that this is a case where the rule in R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742 should be determinative of the case. If I believe the evidence of the accused, I must acquit. Even if I do not believe the testimony of the accused, but am left with reasonable doubt by it, I must acquit. Even if I am not left in a doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[57] Ms. Bramwell submits that even if the Court were to believe the evidence of the accused, it matters not, because the accused situated himself at the extreme southeast corner of Hampton Park and it is clear from all of the evidence that A.L. was sexually assaulted in the northwest part of Hampton Park. As noted earlier, Hampton Park is very large.

[58] I agree with Ms. Bramwell, but go one step further. I do not believe the accused. His story raises no doubt in my mind. I find his story to be preposterous. He described Kim as being a very attractive young woman. It is difficult to conceive an attractive young woman agreeing to have sex in a bush with the accused. In any event, whether the accused had sex on some occasion on a Friday night in the bush with a girl named Kim in June of 1997, it is irrelevant, because the sex would have occurred a significant distance from the location of the assault on A.L.

[59] Without doubt, semen from Francis Charron found its way on to A.L.’s t-shirt. The only way this could have occurred was if the accused person, Francis Charron, sexually assaulted A.L. in the northwest section of Hampton Park on the evening of Friday, June 27, 1997. Ms. Morphew submits that A.L. testified that her attacker ejaculated onto the ground away from where A.L. was lying. It must be remembered that after ejaculating, the attacker resumed his sexual assault on A.L. Semen would be present on his penis during that subsequent episode, and would easily be transferred to A.L.’s t-shirt.

[60] Ms. Morphew submits that even if the evidence of the accused is rejected, a reasonable doubt should arise on the evidence of the DNA. With respect to the attack made on the DNA evidence, the best that can be said about the attack is that it is purely speculative. No expert evidence was called by the defence to challenge the science or the findings of the DNA experts called by the Crown.

[61] This is a case where the rule in R. v. Torrie, 1967 285 (ON CA), [1967] 2 O.R. 8 (C.A.) applies. In that case, the trial judge acquitted the accused on the basis of a possibility that a puncture to a tire was caused before the collision occured by a sharp object thrown against the tire by some other traffic. There was no evidence of any sharp object or objects on the road or of any other traffic near the accident site except the two vehicles which collided. The collision caused the death of the driver and four passengers in the other vehicle. The Crown contended that the puncture could only have occurred as a result of the collision itself. Evans J.A. speaking for the court stated at paras 7, 9 and 10:

7. The learned trial judge came to the conclusion, substantially if not wholly, based upon the answer of the witness McMillan, to the hypothetical questions, that there was a reasonable doubt of the respondent’s guilt. In my opinion, this conclusion is in error for there was no evidence to support it. The “sharp object” or “other traffic” appeared only in the questions of counsel for the respondent and lacked factual support.

8. With the greatest of respect, I am of the opinion that the learned trial Judge misapplied the rule in Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, as to circumstantial evidence in that he based his finding of reasonable doubt on non-existent evidence. In R. v. McIver, 1964 248 (ON SC), [1965] 1 O.R. 306 at p. 309, 1965 1 C.C.C. 210 at p. 214, McRuer, C.J.H.C. said:

The rule (in Hodge’s Case) makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and the conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.

10. This statement was approved on appeal to this Court 1965 26 (ON CA), [1965] 2 O.R. 475, [1965] 4 C.C.C. 182, 45 C.R. 401, and an appeal therefrom to the Supreme Court of Canada was dismissed. 1966 6 (SCC), [1966] 2 C.C.C. 289, 48 C.R. 4 at para. 10:

I recognize that the onus of proof must rest with the crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.

[62] In my view, the case of Torrie is directly on point. The hypotheticals postulated by Ms. Morphew with respect to the DNA evidence, its handling, its testing and its conclusions are purely conjectural, speculative and not based on facts. The facts, as proven by the Crown, show that at all times the DNA evidence was scrupulously dealt with by all forensic experts. There can be no doubt that the clothing taken from A.L. on the night that she was sexually assaulted was handled appropriately by her father and by all Ottawa Police personnel and RCMP personnel who subsequently dealt with the clothing, including A.L.’s t-shirt. As stated earlier, for those who might wish to delve deeper into the scrupulous dealings on the part of these professionals, resort may be had to the transcript of this case.

Disposition

[63] This is a case where I am not only sure of the guilt of the accused. I am absolutely sure of his guilt. As such, the accused shall be found guilty of all counts in the Indictment.

C. McKinnon J.

Released: July 9, 2015