Her Majesty the Queen v. Ricky Lionel Keewasin, 2016 ONSC 5463

COURT FILE NO.: CR-14-0027-00 DATE: 2016-08-30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. Elaine Burton, for the Crown

- and -

RICKY LIONEL KEEWASIN Mr. Francis Thatcher, for the Accused Accused

HEARD: April 25, 26, 27, 28, and 29, 2016 at Thunder Bay, Ontario

Mr. Justice W.D. Newton

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE *CRIMINAL CODE*

Reasons For Judgment

Introduction

[1] On October 26, 2013, at about 4 a.m., officers responding to a 911 call came to the assistance of J.M., a 13-year-old female. She was bleeding profusely from her vagina. J.M. was transported to hospital where a 2 – 3 cm laceration to her vaginal wall was repaired. Because of blood loss she was given two units of whole blood.

[2] The night before, J.M., along with others and the accused, then 28, had been drinking at J.M.’s mother’s home. Most of those present were intoxicated including J.M. J.M.’s recollection is sparse because of her intoxication but what she does remember implicates Mr. Keewasin as the person who sexually assaulted her. The issue in this trial is whether J.M.’s evidence combined with other evidence including video surveillance and DNA is sufficient to satisfy me beyond a reasonable doubt that the accused, Mr. Keewasin, was the person who sexually assaulted and caused injury to J.M.

The Charges

[3] On this indictment Ricky Lionel Keewasin stands charged:

1. That he, Ricky Lionel Keewasin, on or about the 26th day of October in the year 2013 at the City of Thunder Bay in the said Region, did in committing a sexual assault on J.M. wound the said J.M., thereby committing an aggravated sexual assault, contrary to Section 273 of the *Criminal Code* And Further
2. That he, Ricky Lionel Keewasin, on or about the 26th day of October in the year 2013 at the City of Thunder Bay in the said Region, did for a sexual purpose touch J.M. a person under the age of sixteen years directly with a part of his body to wit: his penis, contrary to Section 151 of the *Criminal Code* And Further
3. That he, Ricky Lionel Keewasin, on or about the 26th day of October in the year 2013 at the City of Thunder Bay in the said Region; being a person bound by a Recognizance under Section 810, did commit a breach of said Recognizance, to wit: keep the peace and be of good behavior, contrary to Section 811 of the *Criminal Code* And Further
4. That he, Ricky Lionel Keewasin on or about the 26th day of October in the year 2013 at the City of Thunder Bay in the said Region, did being at large on his recognizance entered into before a Judge or Justice of the Peace and being bound to comply with a condition of that recognizance to be in your residence daily between 11:00 pm to 6:00 am, without lawful excuse failed to comply with that condition by not being in his residence between 11:00 pm and 6:00 am, contrary to Section 145(3) of the *Criminal Code*.

[4] Mr. Keewasin entered pleas of not guilty to these charges. He entered a plea of guilty to another charge – curfew breach – arising from an encounter with police on September 24, 2013.

[5] It is acknowledged that J.M. was sexually assaulted and wounded. It is further acknowledged that Mr. Keewasin was bound by the recognizances in Counts 3 and 4. Therefore, the sole issue is whether Mr. Keewasin is the person who sexually assaulted J.M. and, therefore, also in breach of the recognizances.

J.M.

[6] By the time of trial, J.M. had just turned 15. She attempted to testify in the courtroom on the first day of trial. She said “I got too drunk and I got sexually assaulted.” After a few minutes of testifying, J.M. became very unresponsive and kept repeating quietly “I do not want to do this.” She was excused and attempted to testify the next day by closed circuit television and with a support person with the consent of the accused.

[7] When she began to testify the following day she said that she was “feeling very nervous” because she was “scared of Ricky.” She said that she was unable to testify. She confirmed that her fear came from that night and that she did not see or have any contact, directly or indirectly, with the accused since that night.

[8] The Crown then brought an application to admit into evidence J.M.’s videotaped statement and J.M.’s testimony from the preliminary inquiry. Mr. Keewasin was in custody at the time of the preliminary inquiry and was not in custody at the time of trial. After hearing submissions from the Crown and the Defence, I allowed the application finding that J.M. was unable to testify because of genuine fear and that the preliminary inquiry transcript was sufficiently reliable for admission. Counsel agreed that if I admitted either the video statement or the preliminary transcript then both should be admitted into evidence.

J.M. Videotaped Interview – October 27, 2013 – Unsworn

[9] Initially J.M. said that she did not “remember anything” but “drinking a lot of hairspray that night.” She said that she had met Mr. Keewasin a couple of weeks before. She described a fight with Mr. Keewasin’s girlfriend and then later drinking beer and hairspray at her mother’s with Mr. Keewasin and others. With respect to the incident she said:

I blacked out – it was a big blur – I do not remember going out and all I remember is just coming home and about to go change. That is what I remember.

[10] She remembers that she was coming home with Mr. Keewasin and that she wanted to change her clothes because she thought she had “pissed” herself and then found blood on her legs.

[11] When prompted with the information that she told her cousin that Mr. Keewasin was responsible J.M. said:

All I remember it is that – he – him on top of me and then walking home and um yeah.

[12] When asked whether this was a vaginal or anal sex she said “I do not really know.”

[13] J.M. did not remember where this happened. She did not recall what Mr. Keewasin was wearing.

[14] When asked whether she had sex with anyone else that night J.M. responded, “no I do not think so – I do not know.”

J.M.’s Testimony at the Preliminary Inquiry – March 6, 2014

[15] J.M. testified under oath with a support person.

[16] She testified that she was drinking hairspray with Mr. Keewasin and others. She testified that she did not remember leaving the house but remembers being in a field with Mr. Keewasin. She testified that Mr. Keewasin was “on top of me doing something” which she described as “sexually abusing me.”

[17] She testified that she was wearing grey “joggers” and a brown jacket. She testified that Mr. Keewasin was wearing a black jacket. She did not remember anyone else being in the field with her other than Mr. Keewasin.

[18] She remembered walking back to her mother’s place and remembers Mr. Keewasin trying to make her come with him somewhere on Arthur Street but that she declined because she thought she had urinated in her pants. She thought that Mr. Keewasin had come all the way home with her but did not remember. J.M. testified that when she returned home she went to the basement to change and then found blood and started to “freak out.” That prompted her cousin to come to the basement. An ambulance was called.

[19] In cross-examination, she confirmed that she did not remember leaving her mother’s home with Mr. Keewasin. When counsel for Mr. Keewasin suggested that she might have met someone else, J.M. testified that she was alone with Mr. Keewasin with him on top of her. When asked how she could be sure it was Mr. Keewasin she said she was sure because of his neck tattoos.

[20] When confronted with her statement to the police that she did not remember what Mr. Keewasin did she testified that a few days afterwards she started to remember some things. She denied that these memories were created based on what others told her. She testified that she remembers being touched in her “vaginal area” with “his hands and his penis or something.” She then said “I cannot explain it. It is just so embarrassing.” She then testified “it’s just his penis. Whatever.”

[21] When pressed whether there were other people present she repeated her testimony that she remembered being in the field and that it was just her and Mr. Keewasin there.

J.M.’s Sister

[22] J.M.’s sister is older by six years. She testified that she, J.M., Mr. Keewasin and several other people were drinking beer and hairspray at her mother’s home. Earlier Mr. Keewasin’s girlfriend had also been present but was asked to leave because she was drunk and abusive. She retaliated by breaking some windows from the outside. J.M. then attacked her and beat her. J.M.’s sister testified that J.M. did not sustain any injury or get any blood on her in this incident. The police were called and arrested Mr. Keewasin’s girlfriend. J.M. was not present then as she had left to avoid the police.

[23] Despite his girlfriend’s arrest, Mr. Keewasin remained and continued to drink. When J.M. returned she continued drinking with the rest. J.M.’s sister testified that later that night she, J.M. and Mr. Keewasin were “about to take off” but she then changed her mind and tried to tell her sister not to go with Mr. Keewasin. She testified that her sister would not listen to her and then J.M. left with Mr. Keewasin. She then went to bed and was asleep when the police responded to the 911 call. She described her sister as “really drunk” when she saw her leave with Mr. Keewasin.

J.M.’s Cousin

[24] J.M.’s cousin is nine years older than J.M. She was also drinking with this group.

[25] She testified that she did not see J.M. leave with Mr. Keewasin. She testified that early in the morning she heard J.M.’s screams from the basement and went down to discover J.M. bleeding. The cousin then left to find someone to call 911. She testified that J.M. said “Ricky did this to me.”

The Police Officers Who Responded to the 911 Call

[26] Constable Krupa was one of two officers who responded to the 911 call and arrived on scene shortly after 4 a.m. When he encountered J.M. she was upset, distraught and bleeding profusely. When Constable Krupa asked J.M. what happened, J.M. answered. The officer recorded this in his notebook: “a male Ricky raped and penetrated her.”

[27] Constable Druhar was the other officer. Similarly, she asked J.M. what happened and J.M. responded that she was “taken advantage of” and that her vagina had been penetrated by a penis and not another object. Constable Druhar asked who the assailant was and J.M. said that it was Ricky and that he was “old and wearing all black.” Otherwise J.M. said that she could not remember anything.

Ricky Keewasin

[28] Mr Keewasin denied sexually assaulting J.M.

[29] Mr. Keewasin is from Wunnumin Lake First Nation. He testified that, at the time of his arrest, he lived in an apartment on Arthur Street in Thunder Bay with his girlfriend. His girlfriend was related, but not closely, to J.M.’s mother. He had attended at J.M.’s mother’s house with his girlfriend several times in the week preceding October 26, 2013, and had met J.M. twice before.

[30] On October 25, at about 4:30 p.m., Mr. Keewasin and his girlfriend attended again and brought hairspray and malt liquor. He said that there were a number of parties in the neighborhood that evening including one party with a lot of males at a suspected drug house next door.

[31] After drinking for a while, he and his girlfriend “broke up.” That argument led to his girlfriend being ejected from the party and, still angry, she broke one of the windows from the outside. That led to J.M. fighting with her. Mr. Keewasin said that both girls had bleeding noses as a result of the fight.

[32] When J.M. returned after the police had arrested Mr. Keewasin’s girlfriend, she drank with Mr. Keewasin and the others. At one point, J.M. left briefly and, according to Mr. Keewasin, took his sweatshirt to wear. He said that, at times, others wore his sweatshirt as well.

[33] He testified that he left the house at about 3:30 a.m. According to Mr. Keewasin, J.M. had just returned to the house. He said she looked distraught and went downstairs. He said that one of J.M.’s friends, B.M., pointed a finger at him and said that he did it. Because he was being accused, he left.

[34] At another point in his testimony, Mr. Keewasin said that J.M. was crying when she returned and that J.M. had his sweatshirt and that he asked for it back before he left. In cross-examination he said that she passed his sweatshirt to him so that he could put it on. At another point he said that he wasn’t sure whether J.M. was wearing his sweatshirt when she returned. He said that he left the house within 30 seconds of J.M. arriving.

[35] After his arrest on October 27, 2013, he was interviewed by the police. He denied knowing J.M. and said that he was at his apartment by 11 p.m. on October 25 because of his curfew. He testified that at the time of his arrest he was wearing the same clothes he had worn on the 25th -- a long white t-shirt that extended well below his waist, blue jeans, dark runners with a white stripe and a dark green Abercrombie & Fitch hooded sweatshirt. He denied owning a black jacket.

The DNA Evidence

[36] Mr. Keewasin’s sweatshirt, jeans and belt were examined. Blood was detected on the lower front of the sweatshirt. The forensic scientist concluded that the DNA profile is a mixture of DNA from at least three individuals, at least one of whom is female and one of whom is male. J.M. could not be excluded as the source of the major female DNA profile. The scientist noted that the “probability that a randomly selected individual unrelated to J.M. would coincidentally share the observed DNA profile is estimated to be one in 250 trillion.”

[37] J.M.’s clothing was also examined. Semen was not detected.

The Video Surveillance Evidence

[38] The police obtained surveillance video from several surveillance cameras in the area of J.M.’s mother’s home. The surveillance video begins near the home at 2:44 a.m. and ends near the home at 3:52 a.m. The video segments are about nine minutes in length. Much of the video is of poor quality and of no assistance. However, some very brief segments show a male and female walking. Stills were taken of some of the screenshots and also filed as exhibits.

[39] The first segment from approximately 2:44:04 to 2:44:12 is well lit and shows a male and female. The female has reddish coloured shoulder length hair, and is wearing black pants and a jacket with a blue hood. Both Crown and Counsel for Mr. Keewasin agree that the female is J.M. From my observations of J.M. when she attempted to testify I am also satisfied that the female is J.M.

[40] The male is wearing a dark jacket and faded blue jeans. A dark green hoodie is observed protruding above the back of the dark jacket. A white shirt protrudes from the bottom of the dark jacket. He is wearing dark shoes with white markings and side soles. His hair appears to be cut quite short or shaved.

[41] The segment commencing at 2:44:22 depicts what appears to be the same male and female. However, because of lighting, colours are not distinguishable. Faces can be seen in profile. The sides of the male’s shoes can be seen. A white logo is observed on the front of the male’s chest.

[42] The segment commencing at 2:45:48 is very dark but it appears to depict the same two people. At one point it appears that J.M. is hugging the male. Later, the male appears to be guiding J.M. by holding her arm or hand.

[43] The segment commencing at 2:46:09 is again very dark but appears to depict the same two people. Again, the male appears to be holding J.M. by the arm or by the hand. J.M. appears somewhat unsteady on her feet.

[44] There is no further video until about an hour later. The segment commencing at 3:47:52 depicts what appears to be the same two people walking together. The male is no longer holding on to J.M. The white mark or logo on the male’s chest is clearly seen.

[45] The segment commencing at 3:49:15 is of poor quality but shows two people walking together.

[46] Similarly, the segment commencing 3:49:19 is also of poor quality but the white mark or logo on the male’s chest and the shaved or closely cut head are clearly seen.

[47] The video taken commencing at 3:52:01 is taken from the same camera as the first video. The location is just next door to J.M.’s mother’s home. The same male as in the first video, wearing a dark coat, with a white shirt protruding below the waist, blue jeans, and black and white shoes is observed running away from the direction of J.M.’s mother’s home. The build of the male is distinctive, particularly the slope of the shoulders.

Positions of the Parties

[48] The Crown argues that the evidence of J.M., through her recorded statement and her preliminary inquiry testimony, is sufficiently reliable to establish Mr. Keewasin as her assaulter. Counsel for Mr. Keewasin argues that J.M.’s testimony is not reliable because of her intoxication and that her apparent memory that Mr. Keewasin assaulted her arises from suggestions made to her by others. In any event, the Defence argues that her testimony should be given little weight because it was not tested by cross-examination at trial and because of inconsistencies found in her statement and her testimony.

[49] The Crown argues that Mr. Keewasin should not be believed because he lied to the police about not knowing J.M. and about being home by 11 p.m. The Defence argues that Mr. Keewasin lied because he knew he was being improperly implicated, knew he had breached his curfew and wanted to avoid involvement with the police because of his prior record.

[50] The Crown argues that the video surveillance depicts Mr. Keewasin leaving with and returning with J.M. shortly before the 911 call. The Crown points to the similarity between the clothing worn by the male in the video and the clothing worn by Mr. Keewasin at the time of his arrest and the similarity in appearance between the male shown in the video and Mr. Keewasin. The Defence argues that the video is of insufficient quality to establish, beyond a reasonable doubt, that the male depicted in the video is Mr. Keewasin.

[51] The Crown argues that the presence of J.M.’s blood on Mr. Keewasin’s sweatshirt confirms that he sexually assaulted J.M. The Defence argues that J.M.’s blood could have gotten on the sweatshirt when J.M. wore it and that she was bleeding as result of the fight earlier that evening.

[52] Finally, the Crown argues that the statements made by J.M. to her cousin and the two police officers should be admitted into evidence as part of the res gestae. The Defence argues that the statements are hearsay and that the res gestae exception is not triggered on these facts.

The Law

Testimony of the Accused

[53] In assessing the evidence in this case, since Mr. Keewasin testified, I must also consider the instructions of the Supreme Court of Canada in R. v. W.(D.). In W.(D.), the Court found as follows at paras. 27 and 28:

[27] The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra, at p. 207.

[28] Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[54] Regarding the first step in the W.(D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.

[55] The second step should be approached as set out by Binnie J., speaking for a unanimous Court, in R. v. S. (J.H.), 2008 SCC 30, at paras. 10 – 12:

10. The precise formulation of the W.(D.) questions has been criticized …

11. As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.

12. … In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested in additional instructions:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [p.155]

[56] W.(D.) makes it clear that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. At para. 9 in W.(D.), Cory J. stated:

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

[57] The third step of the W.(D.) analysis is required even in the event that I am not left in doubt by the evidence of the accused. I still must determine whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

The Use of Surveillance Video to Establish Identity

[58] In R. v. Nikolovski, [1996] 3 S.C.R. 1197, Cory J., in summarizing the use of video surveillance evidence, stated:

28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused. [Emphasis added]

[59] With that must also go the caveat that resemblance without more, does not amount to identification. Code J., in R. v. John, 2010 ONSC 6085, summarized the law as follows:

15 The law is clear that evidence of a “resemblance”, established pursuant to the rule in Nikolovski, can be considered by the trier of fact together with other evidence of identification, in determining whether the Crown has proved its case. See: R. v. Brown (2009), 2009 ONCA 563, 251 O.A.C. 264 at para. 26; R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.). Furthermore, evidence of a “resemblance” can complete the Crown's proof of identity, depending on the strength of the other identification evidence. As Watt J.A. put it in R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 at para. 121 (Ont. C.A.), giving the judgment of the Court:

As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution's proof.

Also see: R. v. Boucher (2000), 2000 ONCA 3270, 146 C.C.C. (3d) 52 at para. 19 (Ont. C.A.).

Res Gestae

[60] In R. v. Khan (1988), 1988 ONCA 7106, 27 O.A.C. 142, the Court of Appeal succinctly summarized the doctrine at para. 30:

A spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion, often referred to as a res gestae statement, may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneously to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.

[61] As in this case, Defence counsel in R. v. Hall, 2011 ONSC 5628, argued that a number of the statements were not res gestae statements because they were given in response to questions. Justice Archibald stated at para. 18:

I do not agree that the word “spontaneous” cannot include answers in response to questions for the purposes of the res gestae exception. In Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 3rd ed (Markham: Lexis Nexis, 2009), the authors refer to R. v. Andrews, [1987] A.C. 281, a decision by the House of Lords on the res gestae doctrine. The House of Lords set out five fundamental guidelines that a trial judge should take into account, including the following on the spontaneity of the statement:

In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. [Emphasis added]

Analysis and Disposition

[62] Without further evidence it would be challenging to determine who assaulted J.M. based on the testimony alone. The testimony of Mr. Keewasin would be pitted against the testimony of J.M. and J.M.’s sister.

[63] Mr. Keewasin lied to police. He admits that he was with J.M. at least part of the evening. He admits leaving J.M.’s mother’s home shortly after J.M. returns there.

[64] J.M.’s recollection is very sparse due to her intoxication by alcohol and drugs. The hospital records note that her blood disclosed alcohol, Percocet and marijuana. She may have had as many as four Percocet. She is mistaken about her clothing that night. There are some discrepancies between her statement to the police and her preliminary inquiry testimony as to the sex act itself and what Mr. Keewasin was wearing. At the time of her statement she did not know but offered evidence on both at the preliminary inquiry. J.M. is consistent, however, with her recollection of coming home with Mr. Keewasin and needing to change. She is consistent in her recollection of Mr. Keewasin being on top of her. J.M.’s sister testified that she saw J.M. leave with Mr. Keewasin and that J.M. was really drunk.

[65] I am mindful of the caution against relying upon poor quality video for identification. I examined the video carefully during trial upon the large screen in the courtroom and many, many times since then in chambers. I observed Mr. Keewasin over the course of five days – standing when I entered and exited the courtroom and upon arraignment, walking to and from the witness stand, sitting at the counsel table and testifying beside me from the witness stand. I also studied the photographs of Mr. Keewasin and his clothing at the time of his arrest. His appearance is distinctive, not only because of his prominent tattoos and shaved head, but also because of the shape of his shoulders and torso.

[66] It is conceded, and I agree, that the girl in the video is J.M. Mr. Keewasin admits that he left the home shortly after J.M. returns. I conclude that the male depicted leaving the area is the male seen walking with J.M. on the first video. I also conclude that the male is Mr. Keewasin. The resemblance is not only in the body and head shape and shaved head but also in the clothing – the sweatshirt or hoodie, the long white shirt, the faded jeans and the footwear.

[67] The combined force of evidence of resemblance and Mr. Keewasin’s admitted presence and exit from the home assist in the proof. Added to that is the presence of J.M.’s blood on Mr. Keewasin’s sweatshirt.

[68] I do not accept the submission of the Crown that J.M.’s statements to her cousin and the police are admissible as part of the res gestae. J.M. returned home just prior to 3:52 a.m. The police arrived at 4:09 a.m. The statement to J.M.’s cousin was prior to the 911 call at 4:06 a.m. “The admissibility of such statements is dependent upon the possibility of concoction or fabrication” (See Khan above at paragraph 59). Mr. Keewasin had already left. The possibility of fabrication exists and, therefore, I disregard these hearsay statements.

[69] After reviewing all the evidence, I reject Mr. Keewasin’s testimony that he did not leave and return with J.M. and that he did not sexually assault her. I conclude, as stated, that Mr. Keewasin is the male shown in the video with J.M. This accords with J.M.’s evidence and with the evidence of her sister who saw J.M. leave with Mr. Keewasin. Further, I reject Mr. Keewasin’s testimony that suggested that J.M.’s blood had accidentally arrived on his sweatshirt in some other manner. I prefer the evidence of J.M’s sister that J.M. was not injured in the fight earlier that night. I do accept his evidence that he left the home quickly because he was accused. By whom, I do not know. Mr. Keewasin was the only one who mentioned the presence of B.M.

[70] I am mindful of the fact that J.M.’s testimony was not tested by cross-examination at trial. Nevertheless, I do accept her statement to the police and her testimony from the preliminary inquiry that she was alone with Mr. Keewasin and that he was on top of her.

[71] Consequently, on the basis of all of the evidence I am satisfied beyond a reasonable doubt that, on October 26, 2013, Mr. Keewasin did wound J.M. in committing a sexual assault and I therefore find Mr. Keewasin guilty of aggravated sexual assault contrary to Section 273 of the *Criminal Code*. Consent is not an issue because of J.M.’s age.

[72] Further, I am also satisfied beyond a reasonable doubt that Mr. Keewasin did for a sexual purpose touch J.M., a person under the age of 16 years directly with his penis and therefore I find Mr. Keewasin guilty of sexual interference contrary to Section 151 of the *Criminal Code*.

[73] Finally, as a consequence of these findings, I am also satisfied beyond a reasonable doubt that Mr. Keewasin is guilty of breach of recognizance contrary to Section 811 of the *Criminal Code* for failing to keep the peace and be of good behaviour and is guilty of breach of recognizance contrary to Section 145(3) of the *Criminal Code* for failing to comply with his curfew conditions.

“Original signed by”____ The Hon. Mr. Justice W.D. Newton

Released: August 30, 2016