CITATION: R. v. Russell, 2016 ONSC 1231
COURT FILE NO.: 23-15AP
DATE: 20160219
Summary Conviction Appeal
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANTONIO TEJERO-RUSSELL
Appellant
Thaddeus Ofiara, for the Crown
Erec Rolfe, for the Appellant
HEARD: January 19, 2016
McWatt J.
REASONS FOR JUDGMENT
[1] The appellant appeals his August 18, 2014 conviction for sexual assault and the sentence of eighteen months in jail imposed February 4, 2015.
The Facts
[2] On July 22, 2012 the complainant was twenty-one years old and the appellant was a forty-seven year old friend of her mother. The complainant’s mother sent her from British Columbia to stay in Toronto with the appellant for a few days. On the night in question, the complainant consumed a large amount of alcohol and, during the evening, the appellant kissed her shoulder and touched her leg – telling her she was beautiful and that he knew what she had been through with her ex-boyfriend. Feeling uncomfortable, the complainant went to her room, closed the door and fell asleep with her clothes on. It was hot outside. When she awoke, she was naked and the appellant was on the bed with her. He was clothed.
[3] The appellant gave a videotaped statement to the police which was led by the Crown at trial. He denied being in bed with the complainant and doing anything of a sexual nature to her.
[4] The complainant told the police about the incident the next day. Her clothes were later examined and she provided a sexual assault kit at the hospital.
[5] Forensic evidence was admitted at trial in the form of four reports from the Centre of Forensic Science, two photographs of the complainant’s underwear and an agreed statement of facts related to the findings of the evidence.
[6] The forensic evidence consisted of the following:
No DNA or semen was located on the complainant’s external genitalia;
Male DNA of insufficient quantity to attempt male-specific Y-STR analysis was detected on the epithelial fraction of the external genitalia swab taken from the complainant;
The complainant’s urine contained Benzoylecgonine, Cocaethyline and cocaine. This did not mean that at the time of the incident, there was blood concentration of a drug, or drug effects. The cocaine and Benzoylecgonine are cocaine, the effects of which may include excitation, euphoria, increased risk–taking behavior, blurred vision and hallucinations. Cocaethylene is a metabolite of cocaine that is formed in the liver in the presence of alcohol;
Amylase was detected on the entire inside surface of the complainant’s underwear, including the front crotch panel and back strap. Some amylase reactions indicate the presence of saliva (approximately one half of the surface area) while others can indicate various body fluids, including saliva. Semen was not detected;
The appellant cannot be excluded as the source of the DNA located on the underwear;
Silver dots on photographs of the front and back of the complainant’s underwear show areas where amylase was detected. The parties agreed with the author of the report that the source of the amylase is saliva. Saliva could have been transferred onto the underwear in two ways - either by primary (directly from the source) or secondary (deposited onto other object and then to underwear) transfer.
[7] There was no evidence at trial when or how the amylase was transferred to the underwear; where the underwear was kept leading up to the night in question; whether the appellant’s DNA was transferred directly from its source to the inside of the underwear (as opposed to being transferred to the outside and wicking – or flowing through to the inside); whether the amylase was transferred to the underwear directly or indirectly (by primary or secondary transfer); whether a liquid such as saliva, if applied to the outside of this particular fabric, would flow through to the inside of it; what volume of saliva was on the underwear; whether the outside of the underwear was tested for amylase; and the thickness of the underwear (aside from what can be seen in the photographs).
Trial Judge’s Reasons
[8] The trial judge concluded that the appellant performed oral sex, or some sexual thing, on the complainant while she slept or was unconscious. Any other proposed scenario about how the appellant’s DNA found its way onto the inside of the complainant’s underwear, he found, was preposterous.
[9] The trial judge noted in his reasons to convict that his comments during the submissions formed part of the reasons, but he did not indicate which comments those were.
[10] He accepted the Crown’s submission that a large quantity of saliva was located inside the underwear. He considered the evidence of the Crown and the appellant’s denial and found the appellant guilty.
Analysis
(i) Was the trial judge’s verdict unreasonable because he misapprehended the evidence, drew impermissible inferences and failed to consider that the appellant’s DNA was not found on the complainant?;
(ii) Did the trial judge fail to provide sufficient reasons?
[11] This was a circumstantial case. The inferences the trial judge drew had to be reasonable and based on proven facts from the totality of the evidence [R. v. Mars, 2006 3460 (ON CA), [2006], O.J. No. 472 at paras. 4-5 (C.A.); R. v. Barrett, [2004] N.S.J. No. 86 at paras. 17-19 (C.A.)]. In Barrett, Cromwell J.A. cited the Supreme Court of Canada case of R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at 185 and extracted the test for whether a verdict is reasonable in such a case. He wrote:
I would conclude that while the test for whether a verdict is reasonable is the same in all cases, where the Crown’s case is entirely circumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence be consistent with guilt and inconsistent with innocence; see Yebes at page 85 where this formulation was said to be the equivalent of the requirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt … “whether a properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant” … was guilty.
[12] The verdict in this case was unreasonable for the following reasons.
[13] Although he did not say so in his reasons, the trial judge found that the appellant’s DNA came from his performing oral sex on the complainant as she slept and while she was wearing the underwear, as per the theory of the Crown.
[14] There was no evidence that the complainant was wearing her underwear when the appellant’s DNA was placed there. And, although the trial judge could have drawn this inference on the evidence, there was another equally rational inference to be drawn based on a consideration of the lack of evidence in this case. That is that the appellant’s DNA was placed on the complainant’s underwear while she was not wearing them.
[15] The trial judge may have found the appellant performed oral sex directly on the complainant and his DNA was transferred to the inside of the complainant’s underwear when she put them on, but there was no DNA found on the complainant’s genitals to support this inference. In any event, he did not state that these were his findings of fact. There was no evidence about who undressed the complainant and the trial judge made no findings of fact in this regard in his reasons to convict the appellant.
[16] It is difficult from his reasons to determine the trial judge’s reasoning process. As well as not discussing the forensic evidence, he did not give reasons why he found the complainant credible in the circumstances or why the accused’s evidence was not credible and did not raise a reasonable doubt.
[17] The judge’s comments during submissions do not sufficiently allow this court to meaningfully review whether he properly conducted a W.D. analysis on the appellant’s exculpatory statement. The trial judge found that the appellant may have consumed enough alcohol to suffer memory loss, but this was not supported by the evidence. Although the complainant testified the appellant drank rum, she did not know how much or the effects of it on his sobriety. The appellant told police he was not drinking much on the night in question and there was no other evidence to contradict this.
[18] The trial judge was suspicious of the appellant’s use of the term “rape” in his interview with police and used that fact to support his conclusion that the appellant was guilty of the offence. There were various innocent explanations for this appellant’s use of the term, which the judge did not deal with in his reasons to reject the appellant’s exculpatory statement.
[19] For these reasons, the appeal against conviction is granted and a new trial is ordered.
[20] The appellant shall appear in the Provincial Court by April 1, 2016 to set a date for trial.
McWatt J.
Released: February 19, 2016
CITATION: R. v. Russell, 2016 ONSC 1231
COURT FILE NO.: 23-15AP
DATE: 20160219
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ANTONIO TEJERO-RUSSELL
Appellant
REASONS FOR JUDGMENT
McWatt J.
Released: February 19, 2016