CITATION: R. v. A.G., 2016 ONSC 1406
COURT FILE NO.: CR-12-2106-00
DATE: 20160226
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
K. Holmes, for the Crown
- and -
A.G.
R. Napal, for the defence
HEARD: December 14, 15, 16, 2015 and January 19, 2016
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
André J.
[1] In August 2010, A.D., then ten years old, went to Mississauga to spend a few days at the house of her friend’s mother. A.D. returned to her Toronto home on August 14, 2010. While watching television, A.D. told her elder sister that her friend’s stepfather, A.G., had touched her on her vagina. A.D. stated that at approximately 1:00 a.m., A.G. had entered the room where she slept and proceeded to perform cunnilingus on her. DNA evidence, relied on by the Crown, showed traces of the accused’s saliva on the underwear A.D. wore during the evening of the alleged incident. The accused has denied any wrongdoing and has insisted that he did not return home until 6:00 a.m. that morning. I must therefore decide, based on the totality of the evidence that I accept, whether the Crown has proven beyond a reasonable doubt that A.G. committed a sexual assault on A.D. and/or touched her for a sexual purpose.
SUMMARY OF THE EVIDENCE
[2] K.D. testified that her sister, A.D., returned home on August 14, 2010 after spending five days at the home of her friend’s mother in Mississauga. While watching television with her friend, K.S., A.D. asked K.S. whether she should tell her sister. K.S. replied that she should not. K.D. questioned her sister who then related that K.S.’s stepfather had entered the room where she slept and performed cunnilingus on her. While relating what had allegedly taken place, A.D. was “stricken” while her friend was shaking and crying. K.D. then contacted the police. A.D. subsequently told K.D. that following the incident, they were scared to leave the room and that she had urinated on herself following the alleged incident.
Constable Jennifer Dekezel
[3] This Toronto police constable took a statement from A.D. A.D. told her that the alleged assault had taken place on August 14, 2010. The officer proceeded to a bedroom with A.D. and asked her to place the clothes she was wearing along with other clothing she had worn in the Mississauga home in a brown paper bag. A.D. placed three items of clothing in the bag and then put on a new set of clothing. The officer described A.D. as “shell-shocked, traumatized and in a daze”. The officer, who never touched the items of clothing, gave the bag to her colleague, Cst. Iwanska, without sealing it.
Constable Olga Iwanska
[4] This Toronto officer testified that she went to A.D.’s house, where Cst. Dekezel gave her a brown paper bag with clothing. The bag was not sealed and there was no writing on it. The officer later transported A.D. and four of her family members to the Peel Regional Police Force station on Derry Road in Mississauga. The officer never lost sight of the bag. She never opened it nor removed its contents. She gave the bag to Cst. Duncan and told him that it contained A.D.’s clothing, which she had worn at the time of the alleged assault.
A.D.
[5] The complainant viewed the video statement she had given to the Peel Regional Police Force and testified that she had spoken the truth to the police. She reiterated that the accused had “licked her privates while her friend was sleeping next to her.” She testified that she was sure that the accused had touched her vagina two to three times. She was not awake when he had entered the room. He had partially pulled down her pyjama pants.
[6] Under cross-examination, A.D. stated that the accused could have touched her once. She admitted that she could not see the face of the person who had touched or licked her. She indicated that she was positioned against the wall on the bed. She denied that she had dreamt the incident.
[7] Asked why she had not called her father or sister immediately following the incident, she replied that she did not understand that what the accused had done was wrong. She did not recall the accused reproaching her about the untidiness of the room nor did she recall being upset with him. She testified that she believed the accused was drunk because it was about 2:00 a.m. at the time of the incident. Asked about her friend’s grandfather who lived at the residence, she replied that she had not seen him during the week she was at the house.
Linda Parker
[8] Ms. Parker, a forensic biologist at the Centre of Forensic Sciences (“CFS”) for 18 years, was qualified on consent as an expert in DNA analysis and interpretation. She completed her report in this matter in November 2010. Meanwhile her colleague, Kelly Jo Walden, also did a report.
[9] Ms. Parker described the procedure used when the CFS received samples of A.D.’s clothing for testing. A technician submitted a case submission form which contained two external genitalia swabs extracted from A.D.’s underwear and a swab with the accused’s DNA. A.G.’s buccal swab arrived at the CFS in a separate envelope, which had been placed in a bag.
[10] The CFS received the samples on August 26, 2010 and processed them on August 31, 2010. During this period, the bags were stored in a secure storage area.
[11] A CFS screening unit technologist in the biology department, Nancy Ouellette, tested the underwear, worn by A.D. during the alleged incident. The underwear was described as light green with a yellow tint. It tested positive for a chemical in saliva called amylase. Ms. Ouellette found the amylase near the crotch area of the underwear. Ms. Parker testified that amylase was found on a “good part of the crotch area”. The presence of this chemical confirmed that cunnilingus had occurred.
[12] Ms. Parker generated a male DNA profile from the amylase found on A.D.’s underwear and tested it against the buccal and blood sample swab from the accused. Ms. Parker determined, from the results of this test, that A.G. could not be excluded as a possible donor of the DNA male profile (derived from the amylase) found on A.D.’s underwear. Ms. Parker opined that the probability that a randomly selected individual unrelated to A.G. would coincidentally share the observed DNA profile is estimated to be 1 in 14 trillion.
[13] Ms. Parker tested a second pair of multi-coloured underwear derived from the brown paper bag. She did not find any amylase on this underwear.
[14] Under cross-examination Ms. Parker testified that she removed amylase in a large area of the green underwear. She reiterated that the accused cannot be excluded as the source of male DNA extracted from the underwear.
[15] Questioned about the type of bodily fluids which contain amylase, Ms. Parker indicated that fecal matter, sweat, nasal secretions and saliva all contained amylase. The area on the underwear which had amylase was 22 by 10 centimetres.
[16] Asked whether the amylase could have occurred on account of dirty clothing coming into contact with A.D.’s underwear, Ms. Parker conceded that it was possible for such an event to produce amylase on the underwear. Asked if the amylase could have been caused by sneezing, Ms. Parker replied that she would not have expected transfers in that amount to be caused by sneezing. She also noted that the amylase detected on the underwear extended through the crotch area and partially up through the back panel of the underwear. Ms. Parker opined that the location of amylase on A.D.’s underwear made it unlikely that it occurred through innocent contamination.
Constable Leslie Duncan
[17] This officer received a brown paper bag with a t-shirt and a pair of green underwear on August 14, 2010. On August 14, 2010, she also turned the bag over to Cst. Irving before she had any contact with the accused the following day.
[18] The officer spoke to the accused’s common law spouse. She refused to hand over the pyjamas A.D. had worn the previous night. However, she later attended the police division and handed over a pair of pyjamas (a two piece top and bottom); and a multi-coloured pair of underwear.
[19] The officer attended Maplehurst and obtained a buccal swab from the accused. She had already given the clothing items received from the accused’s common law spouse and the brown paper bag to the Identification Unit before going to Maplehurst. Once she received a buccal swab from the accused, she placed it into an envelope and sealed it. She then handed the envelope to Det. Hufka.
[20] Under cross-examination, the officer denied that she had any items of clothing, including the green underwear, when she went to Maplehurst. She denied having had any clothing in a bag during her visit to the prison.
Constable Donovan Irving
[21] This 16-year veteran of the Peel Regional Police Force participated in the police interview of A.D.’s friend, K.S. He received a brown paper bag from Cst. Duncan, which contained female underwear and a pink top with the words “100% Sweetheart”. He did not open the bag and neither did Cst. Duncan. He transported A.D. to the Sick Kids Hospital in Toronto. He kept the brown paper bag containing her underwear and top in the trunk of the unmarked cruiser. No one had access to the paper bag while it was in the cruiser. The officer later returned A.D. to her home. He then went to the police division and gave the bag, along with the sexual assault kit he received from Sick Kids Hospital, to the Identification Unit. On August 15, 2010, he accompanied Cst. Duncan to the Maplehurst Detention Centre (“Maplehurst”) to obtain a buccal swab from the accused.
Detective Peter Hufka
[22] The 32-year police veteran received the sexual assault kit and the contents of the brown paper bag, which contained a pink shirt and a pair of yellow underwear with blue trim. He placed them in a drying cabinet before turning them over to CFS. No one else had access to the cabinet.
[23] The officer testified that A.D.’s underwear and the buccal swabs he received from Cst. Duncan never came into contact with each other. Furthermore, he testified that Cst. Duncan would not have had access to the drying lockers in which he placed the buccal swabs and contents of the brown paper bag.
Defence Evidence
[24] In August 2010 the accused worked as an auto mechanic and had his own business. He lived in the same house as he does now with his common law spouse, the couple’s daughter, his stepdaughter and his father-in-law. His father-in-law lived in the basement. A.G. testified that he only saw A.D. twice between August 9, 2010 and August 14, 2010. He testified that on August 13, 2010, he worked on a Jaguar until 2:00 a.m. on August 14, 2010 before he left his shop at 6:00 a.m. A friend drove him home. He arrived home at 6:25 a.m. on August 14, 2010. He went into the basement and washed his feet. He then showered and went to bed.
[25] A.G. testified that he used the second-floor washroom to urinate, wash his face and hands, sneeze and blow his nose in the sink. He did not always have time to clean the basin after he used it. He placed his dirty clothing into a laundry basket. Occasionally, he retrieved an item of clothing from the basket if he did not have something clean to wear.
[26] He saw A.D. on Tuesday, August 10, 2010, and reproached her for not putting toys away in the proper area. A.D. also complained to him that she did not like what the accused’s common law wife cooked.
[27] He denied going into A.D.’s room or sexually assaulting her.
[28] The accused stated that Cst. Duncan had a plastic bag with clothing inside, when she visited him at Maplehurst.
[29] Under cross-examination, the accused testified that he shouted at A.D. about his failure to buy McDonald’s for her and his stepdaughter. He admitted to having consumed “a beer or two that night”.
[30] When confronted with his statement to the police, that during the week of August 9, 2010 to August 14, 2010, he had gone into his stepdaughter’s room and placed a blanket over her, he replied that he was exhausted and stressed when he gave the statement.
[31] The accused presented an invoice dated August 14, 2010, as proof that he worked on the Jaguar up to the early morning hours of August 14, 2010. He conceded, however, that he only charged the car owner for two hours of labour. Yet, he insisted that he left his business at 6:00 a.m. that morning.
Evidence of N.H.
[32] N.H., the accused’s father-in-law, testified that he recalled the events of August 14, 2010. He was watching the news on television when he heard the front door open. The accused entered the residence after 6:00 a.m. N.H. went outside to smoke a cigarette and saw the accused climb the stairs leading to the second floor. Asked about the layout of the second storey of the house, the witness testified that he could see the door of the accused’s bedroom from the shared bedroom where A.D. and the accused’s stepdaughter were sleeping.
[33] He testified that he had a clear recollection of what happened five years earlier because the day following the alleged incidents was the Feast of St. Mary.
[34] The parties filed an “Agreed Statement of Facts” (the “Statement”), which included the following concessions from the parties:
We cannot assume that the amylase from the original site which was then deposited onto the underwear was the same shape and size as that which was eventually measured. That is because friction could have moved the underwear around against the source. Also, when the forensic testing is performed, the underwear is sprayed making it wet. Amylase is water soluble so it can then expand and move throughout the underwear, much like a red wine stain being soaked up by a paper towel. So what you have is a measurement taken after or during the test of the staining (that within the dotted lines on the underwear), but we cannot say that the size and shape of that stain directly corresponds to the size and shape upon the amylase first being transferred to the underwear.
Although we know that [A.G.’s] DNA profile is found within the 1 by 1 cm cut out contained within the area of the larger stain, without testing the entire piece of fabric which comprises the stain, we cannot say that his DNA profile would be everywhere within that stain (ie there would be multiple contributions of amylase, only one of which is him).
At this point there is no reliable scientific test that can confirm the bodily fluid or tissue source of a DNA profile. The identification of bodily fluid test is separate and distinct from the DNA profile tests. So although we see [A.G.’s] DNA in a stain of amylase which is likely saliva or nasal secretions (because it is from a rich source of amylase), we cannot say how many contributors of DNA might be in that source or what distinct bodily fluids or tissues belong to whom. For example, skin cells or amylase of the complainant could be in the same stain and we do not have a reliable forensic way to separate them out. We can reliably identify bodily fluids and reliably generate DNA profiles, but correlating the two is done by assumption.
POSITION OF THE CROWN
[35] The Crown submits that based on the testimony of A.D. and the DNA evidence, it has proven its case beyond a reasonable doubt. Specifically, the Crown submits that A.G’s testimony should be rejected for the following reasons:
(1) there is no evidence that A.D.’s underwear was ever in the laundry basket in the washroom upstairs;
(2) the evidence of innocent contamination is not supported by the location and amount of amylase found on the underwear;
(3) there are internal inconsistencies in A.G.’s testimony and between his testimony and that of his father-in-law; and
(4) A.G.’s own evidence indicates that he did not work on the Jaguar as long as he claimed.
POSITION OF THE DEFENCE
[36] Defence counsel submits that the Crown has failed to prove its case beyond a reasonable doubt for the following reasons:
(1) A.D.’s evidence is unreliable as she was partially asleep when the incident allegedly occurred;
(2) the alleged incident could not have taken place without the knowledge of A.D.’s friend;
(3) A.D. had an animus towards the accused and her evidence is therefore untrustworthy;
(4) A.D. delayed in reporting the incident and remained in the same house with the accused;
(5) the DNA evidence is patently unreliable because it does not constitute corroborating evidence. Nasal secretions and saliva, both of which contain amylase, could equally have caused the amylase on A.D.’s underwear; and
(6) the DNA on the underwear could have been caused by innocent contamination given that A.D. and A.G. shared the same laundry basket.
ANALYSIS
[37] The Crown bears the burden of proving its case against A.G. beyond a reasonable doubt. A.G. is entitled to an acquittal if I believe his evidence or, failing which, I find that his evidence is nevertheless capable of raising a reasonable doubt in the Crown’s case. Even if I reject A.G.’s evidence or conclude that it is incapable of raising a reasonable doubt, I must still be satisfied of his guilt beyond a reasonable doubt based on the totality of the evidence that I accept.
[38] Defence counsel submits that A.G.’s evidence is not only credible and reliable but that it is also corroborated by his father-in-law.
[39] A.G. testified that on August 13, 2010 he worked for many hours on a Jaguar and finished that work at approximately 2:00 a.m. on August 14. He then worked on another vehicle and stopped working on it at 6:00 a.m. He finally arrived home at approximately 6:25 a.m.
[40] Significantly, however, A.G.’s testimony is undermined by the very invoice he presented as proof that he worked on the Jaguar until the early morning hours of August 14, 2010. The invoice showed that A.G. billed for a mere two hours for work done on the car. Surely, had he worked on the car from 7:00 p.m. on August 13, 2010 to approximately 2:00 a.m. the next day, he would have billed his client for approximately seven hours of labour.
[41] A.G.’s explanation of this contradiction makes no sense. He testified that his client paid him later. This flimsy explanation, however, does not explain why he only billed his client for two hours of labour when he claimed to have worked about three times longer on the car.
[42] A.G. also testified that he never entered A.D. and the stepdaughter’s shared bedroom that night or on previous nights earlier in the week. Nevertheless, this testimony was not what he told the police. A.G. advised them that he entered the room on one occasion for the innocent purpose of placing a blanket over his stepdaughter.
[43] Third, A.G.’s father-in-law confirmed that he distinctly remembered when A.G. arrived at the residence because the next day was the Feast of St. Mary.
[44] I have great reservations about N.H.’s evidence. He was A.G.’s friend and father-in-law. Hence, he may be motivated to protect A.G. Furthermore, it is rather curious that he has such a remarkable recollection of the time A.G. arrived at the residence and what A.G. did following his arrival. Additionally, his testimony differs from A.G.’s testimony on one critical point. A.G. testified that upon his arrival, he went into the basement and washed his feet. N.H., who claimed to have an excellent recollection of what A.G. did when he returned home, had no such recollection. He testified that A.G. walked along the corridor and then went upstairs. N.H. claimed that he was watching television in the basement when A.G. arrived. If A.G. had gone downstairs as he claimed, N.H. would surely have been aware of this.
[45] For the above reasons, I reject the defence’s evidence that A.G. returned to his residence at 6:00 a.m. on the morning of August 14, 2010 and find that it is incapable of raising a reasonable doubt in the Crown’s case.
[46] A.D. testified that A.G. entered the room, partially pulled down her pyjamas and underwear and performed cunnilingus on her. He then went into his room where she later heard A.G.’s spouse reproaching him for coming home at 2:00 a.m. A.D. went home the next day and upon some probing, told her sister what had transpired.
[47] Defence counsel submits that A.D. is not credible for a number of reasons, including the fact that she was not fully awake and could not have seen A.G. enter his room, that she delayed advising her family about the incident and because of the verbal altercations she had with A.G.
[48] While A.D. may not have been fully awake, she specifically recalled what had transpired, including the fact that she saw A.G. enter his bedroom. N.H. testified that someone in A.D.’s bedroom could see the door to A.G.’s bedroom. A.D. also concluded that the person who had assaulted her was A.G. because she heard his spouse reproaching him for coming home at 2:00 a.m. The only other male who could have done the act in issue was N.H. However, A.D. testified that she never saw him during the time she spent at the residence.
[49] Defence counsel’s suggested that A.D. complained about A.G. because of a conflict she had with him about toys or food. First, A.D. had no recollection of this conflict. Second, it is inconceivable that A.D. would have fabricated this evidence solely because A.G. reproached her about putting the toys in the right location or because A.G. failed to buy McDonald’s for K.S. and herself. Third, the manner in which A.D. disclosed the incident to her sister reflected a reluctance on her part to disclose the incident. She asked K.S. if she should tell her sister. A.D.’s sister testified that she only found out about the details of her encounter with A.G. when she questioned her sister. If A.D. had concocted a story to get back at A.G., it is highly unlikely that she would have needed any prompting to tell her story.
[50] Defence counsel submits that A.D.’s delay in reporting the incident raises concerns about the veracity of her testimony. However, there is a plethora of responses to traumatic incidents. In certain cases, a delay in reporting an incident may well raise concerns about the authenticity of a complaint. In others, a delay may well, along with other factors, authenticate the complaint being made.
[51] The latter, in my view, is true in this case. A.D. had reservations about reporting the incident. She eventually did so upon being questioned by her older sister. Her delay in reporting clearly shows that she had reservations about getting A.G. in trouble.
[52] I find that A.D.’s credibility is bolstered by the DNA evidence. Ms. Parker found a significant amount of amylase in the crotch area of the underwear worn by A.D. during the early morning of August 14, 2010. Ms. Parker opined that A.G. could not be excluded as a source of the amylase. The only other male in the house at the time was N.H. but A.D. never saw him while in the residence between August 9, 2010 and August 14, 2010.
[53] A.G.’s counsel has challenged the DNA evidence on several grounds, including the fact that it resulted either from intentional or innocent contamination.
[54] Regarding the former, it is inconceivable that Cst. Duncan would have gone to Maplehurst to obtain a buccal swab from A.G. while carrying a bag with A.D.’s clothes in it. There was no reason for her to have done so. She was not shaken in her testimony that she gave the brown paper bag with A.D.’s top and green underwear to Cst. Irving a full day before she went to Maplehurst. Cst. Irving corroborated her evidence that he had received the bag from her on August 14, 2010. For these reasons, I fully reject A.G.’s testimony that Cst. Duncan showed him a plastic bag with A.D.’s clothing at Maplehurst.
[55] A.G. provided a number of scenarios to illustrate how his amylase may have ended up on A.D.’s underwear. It could have ended up on A.D.’s underwear from his sneezing, failure to clean the bathroom sink after using it, throwing his dirty garments in a laundry basket and using an item of clothing he had previously discarded in the basket.
[56] The problem is that in these scenarios, there would have been little or no opportunity for A.G.’s amylase to have gotten into A.D.’s underwear. A.D. provided her underwear to Cst. Dekezel of the Toronto Police Service on August 14, 2010. The underwear was never in a laundry basket. Second, Ms. Parker opined that the innocent contamination scenario could not explain the amount and location of the amylase found on A.D.’s underwear.
[57] Defence counsel submits that the Statement brings the DNA evidence into question and significantly undermines the Crown’s case. As discussed above, the Statement makes the following assertions:
(1) the size and shape of the stain on the underwear does not necessarily correspond to the size and shape of the amylase first transferred to the underwear;
(2) it cannot be said that A.G.’s DNA profile would be everywhere within the stain. There could be multiple contributors of amylase, only one of which was A.G.; and
(3) there is no reliable scientific tests that can confirm the bodily fluid or tissue source of a DNA profile; although A.G.’s DNA in a stain of amylase likely originated from saliva or nasal secretions, it is not possible to say how many contributors of DNA might be in that source or what distinct bodily fluids or tissues belong to whom.
[58] The Statement provides no answer to a fundamental issue in this trial: namely, how A.G.’s amylase got on A.D.’s underwear in the first place, absent intentional or innocent contamination and “laundry” contamination. Second, neither the defence or the Crown called evidence that there were other contributors of the DNA found on A.D.’s underwear. It would be impermissible speculation to conclude that other persons may have contributed to the amylase found on the underwear. Third, the Statement provides no explanation of why Ms. Parker found A.G.’s DNA profile in the crotch area of A.D.’s underwear.
[59] In my view, based on the constellation of the evidence, including A.D.’s evidence, the police officers’ evidence, and the forensic evidence, the Crown has proven A.G.’s guilt beyond a reasonable doubt. Based on the totality of the evidence I accept, I find as a fact that A.G. arrived at his home at approximately 2:00 a.m. on August 14, 2010. He went into the room where A.D. and K.S. slept, pulled down A.D.’s pyjamas and underwear and performed cunnilingus on her. He then went into his room where his wife reproached him for coming home late. A.D. was troubled by the incident and reluctantly advised her sister when she had returned to her own home.
CONCLUSION
[60] A.G. is guilty of both charges. Based on the Kienapple principle, the charge of sexual assault is stayed conditionally.
André J.
Released: February 26, 2016
COURT FILE NO.: CR-12-2106-00
DATE: 20160226
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
A.G.
REASONS FOR JUDGMENT
André J.
Released: February 26, 2016