Court File and Parties

COURT FILE NO.: CR-17-11743 DATE: 20171030

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DAVID JEROMY HODGSON

COUNSEL: M. Cole, for the Crown B. Funston, for Mr. Hodgson

HEARD: October 16-18, 2017

REASONS FOR JUDGMENT

SCHRECK J.:

[1] Late at night on April 15, 2015, 20-year-old A.G. was returning from work to her grandmother’s apartment, where she had been staying. As she entered the building of the lobby, a man who was a stranger to her approached her from behind, grabbed her and attempted to pull her out of the building. A.G. struggled and fortunately managed to break free of her attacker, who dropped a glove during the struggle. He then fled the scene.

[2] The Crown alleges that David Hodgson is the man who attacked A.G. He is charged with assault, unlawful confinement and failing to comply with a recognizance and has elected to be tried by me without a jury. The Crown relies primarily on an analysis of DNA found in the glove left behind by the attacker. The DNA in the sample essentially matches a DNA sample taken from Mr. Hodgson or, more accurately, the possibility that the DNA in the sample came from somebody other than Mr. Hodgson is so statistically unlikely as to be insignificant.

[3] There is no issue that the man who attacked A.G. assaulted her and there no issue that Mr. Hodgson was bound by a recognizance at the relevant time which he would have been breaching if he was the man responsible for the attack. Consequently, the issues I must determine are (1) whether the Crown has proven beyond a reasonable doubt that Mr. Hodgson was the person who attacked A.G. and (2) if so, whether the action of grabbing A.G. and trying to drag her from the building amounted to an unlawful confinement.

I. Evidence

A. The Attack

[4] In April 2015, A.G., who was 20 years old at the time, was staying at the home of her grandmother, who lived in an apartment building on Princess Street in Toronto. The building is several stories high. To enter it, one has to go through two doors. The first, which opens onto the street, requires no key and can be entered by anybody. The second is locked and anybody wishing to gain entry must either use a key or be “buzzed” in by a resident of the building. The building has no doorman.

[5] On the night of April 15, 2015, A.G. returned to the building from work, arriving there at around 11:00 p.m. She went through the first door and as she was opening the second door with her key, she felt the presence of somebody behind her. She turned around and saw a man who was a stranger to her. He immediately grabbed her by the back of the neck with one hand, placed his other hand over her mouth and tried to drag her from the lobby. A.G. screamed for help and asked the man why he was doing this. He repeatedly told her to “shut up” in an aggressive voice.

[6] A.G. struggled and managed to move into the building lobby and against a wall. She dropped her weight in order to make it difficult for the man to move her out of the building. At this point, her assailant released her and ran out of the building.

B. The Description of the Assailant

[7] A.G. described the man who attacked her as a white male, around 5’8” or 5’9” in height, and in his mid-30s. She was unable to estimate his weight, but described him as having a bigger build and being “a little bit chubby” but not necessarily fat. She described his face as “fuller”. She could not see his hair colour as he was wearing a black pullover “hoodie” with the hood up covering his head. He had facial hair in the form of stubble which was “a lighter colour like blonde or light brown”. In addition to the black hoodie, the assailant was wearing khaki shorts. A.G. recalled him having yellow teeth.

C. The Accused’s Appearance

[8] I heard no evidence respecting Mr. Hodgson’s height. While I had the opportunity to observe him throughout the trial, he was seated in the prisoner’s dock virtually all of the time except when I entered or left the courtroom and I am unable to estimate his height, other than to say that he appeared to me to be neither unusually tall nor short. I also observed a video made in April 2015 when a DNA sample was taken from him, but he remained seated throughout it.

[9] Mr. Hodgson appears to me to be of average build, with fairly broad shoulders. His face is round and could perhaps be described as “chubby”. I am told that Mr. Hodgson is Aboriginal and his facial features appear to me to be consistent with this, although I would describe his skin tone as white. He has a full head of hair and a goatee, both of which appear to me to be grey. In the video from September 2015, he also had a goatee which, in the video, appears browner than it did in the courtroom. According to the date of birth on the recognizance, Mr. Hodgson would have been 36 years old in April 2015. I did not have an opportunity to observe his teeth.

D. The Seizure of the Glove

[10] After the assailant fled, A.G. went up to her grandmother’s apartment and called the police at approximately 11:05 p.m. For reasons that are not clear, the police did not arrive until 12:04 a.m. when Cst. Astolfo and Cst. Freeman attended the scene. After speaking to A.G., the officers decided to take her to the police station so that she could be interviewed on video. As A.G. and the officers left the building, A.G. noticed a woolen glove on the floor of the lobby. She recalled that when the assailant had put his hand on her mouth, it felt rough, as if he was wearing woolen gloves. She accordingly pointed the glove out to the officers, who seized it.

[11] A security camera in the entrance of the apartment building recorded the attack. The video is not in colour and of poor quality. The assailant’s features and clothing are indiscernible. A second camera recorded the assailant approaching and later leaving the building, but these recordings were of even poorer quality. The footage reveals that the attack lasted for approximately nine or 10 seconds.

[12] What is clear in the video is that there was nothing on the floor of the lobby prior to the attack and that there was a glove on the floor immediately afterwards. There is no issue that this was the glove that the police later seized.

E. DNA Evidence

[13] The glove was submitted to the Centre for Forensic Sciences (“CFS”), as was a sample of Mr. Hodgson’s blood that had been seized pursuant to a warrant. Maja Popovic of the CFS was qualified on consent as an expert in forensic DNA analysis and interpretation.

[14] Ms. Popovic testified that a CFS technologist had taken a swab from inside the glove. She did not know where inside the glove the swab was taken from. An analysis of the swab revealed a mixture of DNA from at least three individuals. One was present in a larger amount, which Ms. Popovic referred to as a major contributor, while the other two were referred to as minor contributors. The profiles from the minor contributors were not suitable for analysis. It was possible to create a suitable profile from the major contributor at 15 short tandem repeat (“STR”) locations ( loci ). That profile was compared to a profile created from Mr. Hodgson’s blood sample. According to Ms. Popovic, Mr. Hodgson could not excluded as the source of the profile from the glove and the probability of two different individuals coincidentally sharing that profile is one in 17 quadrillion.

[15] Ms. Popovic testified that she was unable to say whether the major contributor was the last person to have worn the glove, nor was she able to say when any of the samples were deposited. She gave no evidence as to what inferences, if any, could be drawn from the fact that there was a larger amount of DNA from the major contributor than from the minor contributors.

F. Clothing Seized From the Accused’s Residence

[16] The recognizance by which Mr. Hodgson was bound required him to reside in Unit 701 of a particular apartment building. On June 10, 2015, the police executed a search warrant in a unit of that building. Inside the residence, the police located what appears to be either a pair of shorts or swim trunks that were beige in colour. These were found in a bedroom but there is no admissible evidence that it was Mr. Hodgson’s bedroom. In a common area in the unit, the police also located a black pullover hoodie. Two individuals, a male and a female, were in the residence when the police executed the warrant. There is no evidence as to whether either of these individuals lived in the residence, nor was there any evidence as to how many people lived there.

II. Analysis

A. The Case For the Crown

[17] The Crown submits that the presence of Mr. Hodgson’s DNA in the glove considered together with the fact that his appearance is consistent with the description given by the complainant and the fact that clothing similar to that worn by the assailant was found in Mr. Hodgon’s residence proves beyond a reasonable doubt that he was the assailant.

[18] Crown counsel drew my attention to a number of cases in which the presence of DNA was found to be sufficient to prove identity. For example, in R. v. Mufata, 2015 ONCA 50, the Court of Appeal upheld a conviction where the accused’s DNA was found on a pop bottle that had been left in a bathroom stall where an individual had committed the offence of voyeurism. In R. v. Wong, 2011 ONCA 815, a conviction was upheld where the accused’s DNA was found on the inside of a construction mask that had been used during a home invasion and left at the scene. In R. v. Ibrahim, 2014 ONCA 157, the accused’s DNA was found on a balaclava and a toy gun that had been used in a robbery.

[19] Crown counsel submits that although there is evidence that two other individuals had been in contact with the glove, there is no evidence that either of those individuals matched the description of the assailant or that they owned a black hoodie or beige or khaki shorts. Crown counsel suggests that the approach to be taken to the evidence in this case should be similar to that taken in assessing the admissibility of similar fact evidence in that the focus should be on whether there is an objective improbability of coincidence. He submits that it would be a “remarkable coincidence” if one of the other two individuals who had been in contact with the glove matched the description of the assailant and owned similar clothes.

B. Assessing DNA Evidence

[20] DNA comparison is sometimes referred to as the “gold standard” of forensic identification methods. The perpetrators of countless crimes which would have otherwise remained unsolved have been identified using DNA. Just as importantly, hundreds of wrongful convictions have been exposed as a result of DNA testing. However, as with any evidence, it is important to correctly identify the limits of what the evidence is capable of proving. This point was made by Doherty J.A. with respect to fingerprint evidence in R. v. Mars (2006), 2006 ONCA 3460, 205 C.C.C. (3d) 376 (Ont. C.A.) at para. 19:

The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime.

[21] Evidence of identification based on DNA must be assessed in the same manner as any other type of circumstantial evidence. As was made clear in Mars, the inferences that may be drawn will depend on an assessment of the cumulative effect of all of the evidence and whether the guilt of the accused is the only reasonable inference that may be drawn. The approach to be taken to circumstantial evidence was most recently considered by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):

. . . [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts (at paras. 35-37):

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 ONCA 26, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 SCC 6, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, at para. 10; R. v. Bui, 2014 ONCA 614, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 ONCA 14, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 SCC 7, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 SCC 13, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

C. Application to This Case

[22] With those principles in mind, I turn now to the Crown’s argument in this case and will address several concerns.

[23] First, to consider the fact that there is no evidence that the unknown individuals who wore the glove matched the description or owned similar clothing is to fall into the error identified in Villaroman of requiring alternative inferences to be based on “proven facts”.

[24] Second, in my view, it would be wrong to approach the evidence in this case as one would approach issues respecting the admissibility of similar fact evidence. The onus the Crown must meet to have similar fact evidence admitted is a balance of probabilities: R. v. Handy, 2002 SCC 56 at para. 55; R. v. Arp, 1998 SCC 769 at para. 48. Even if the Crown is correct that it is objectively improbable that one of the other two individuals who wore the glove fit the description and owned similar clothing, this establishes only that Mr. Hodgson was probably the perpetrator. Probable guilt cannot ground a conviction.

[25] Third, in any event I am not persuaded that it is all that improbable that one of the other two individuals fit the description or owned similar clothes. The description given by A.G. was very generic. While it does not exclude Mr. Hodgson, it would also not exclude thousands of other people living in Toronto. Black hoodie sweaters and beige or khaki shorts are very common items of clothing worn by many people. In my view, to use the language of Villaroman it is a “plausible theory” or “reasonable possibility” that one of the other two unknown individuals who wore the glove matched the generic description and owned a black hoodie and beige shorts. I note as well that although the hoodie and shorts were seized from Mr. Hodgson’s residence, I heard no evidence as to how many people resided there or whether those items of clothing were Mr. Hodgson’s size. There is no evidence of any DNA sample being taken from the seized clothing.

D. Comparison to Other Cases

[26] The cases relied on by the Crown are, in my view, distinguishable. In Mufuta and Wong, only a single DNA profile was found on the items in question. In Ibrahim, the accused’s DNA was found on two items used in the robbery and he was the sole contributor of the DNA found inside the balaclava.

[27] The case at bar bears greater similarity to R. v. Wills, 2014 ONCA 178. In that case, the accused’s DNA, as well as that of other individuals, was found on two balaclavas that had been used in a home invasion. As in this case, the accused’s description was not inconsistent with the description given by the victims. Writing for a majority of the Court, Doherty J.A. stated (at paras. 34-36):

The DNA evidence was obviously important evidence. The jury could readily infer that one or both of the robbers had worn the bandannas during the robbery. The DNA evidence also established, almost to an absolute certainty, that the appellant, among others, had direct or indirect contact with both bandannas at some point in time before the police found the bandannas at the robbery scene.

The finding of the appellant’s DNA on both, as opposed to just one, of the bandannas was also suggestive of some connection between the appellant and the robbery. The DNA evidence went some way toward identifying the appellant as one of the perpetrators.

However, the DNA evidence alone could not support the inference that the appellant was one of the perpetrators or that either bandanna belonged to the appellant. The expert evidence called by the Crown precluded those inferences based exclusively on the DNA evidence. Like the fingerprint evidence in R. v. Mars (2006), 2006 ONCA 3460, 205 C.C.C. (3d) 376, at paras. 20-21 (Ont. C.A.) and R. v. D.D.T., 2009 ONCA 918, at para. 26, the DNA evidence alone could not say when that DNA was placed on the bandannas and therefore could not identify the appellant as the perpetrator of the robbery. There had to be other evidence which, combined with the DNA evidence, would permit a finding that the appellant was the perpetrator, e.g. see R. v. Samuels, 2009 ONCA 719; and R. v. Wong, 2011 ONCA 815.

[28] With respect to the consistency between the accused’s appearance the description of the perpetrator, Doherty J.A. stated (at para. 43):

I do not think that Mr. Sacchetti’s very general description of one of the robbers, at para. 12, adds any force to the Crown’s case. It is relevant to the reasonableness inquiry only in the sense that it is not inconsistent with the appellant’s appearance and does not, therefore, as in Mars, at para. 26, diminish the potential force of the circumstantial evidence. Mrs. Sacchetti’s description has no evidentiary value.

[29] Ultimately, although he viewed it as a “close call”, Doherty J.A. upheld the conviction because the accused was found in possession of a police baton that was similar to one used during the home invasion (at para. 42):

The reasonableness of the finding that the appellant was one of the perpetrators ultimately depends on the probative value of evidence that the appellant had in his bedroom closet some two months after the robbery a police baton that was similar to the weapon used in the robbery. In considering the probative value of the evidence, one must bear in mind that a police baton is not the kind of object that is commonly found in a household or in the possession of persons other than police officers. The somewhat uncommon nature of the weapon adds some probative force to the evidence from the Crown's perspective.

[30] Unlike a police baton, the clothing found in this case was not uncommon. The unusual nature of the police baton was what led Doherty J.A. to conclude that the conviction was reasonable, albeit a “close call”. Pepall J.A. dissented and would have set aside the conviction. In my view, if Wills was a “close call” despite the accused’s DNA being found on two objects associated with the crime and despite the accused’s possession of an uncommon object similar to that used by the perpetrator, then the evidence in this case, which is less compelling, cannot meet the requisite standard of proof to justify a conviction. See also R. v. Grayston, 2016 ONCA 784; R. v. Woodman, 2014 ONSC 5845; R. v. Boateng, 2015 ONSC 3197.

[31] Based on the foregoing, having cumulatively considered all of the evidence in this case, I am not satisfied beyond a reasonable doubt that Mr. Hodgson was the man who attacked A.G.

E. Unlawful Confinement

[32] Given my conclusions respecting the issue of identity, it is not strictly necessary for me to determine whether the offence of unlawful confinement was made out. The disagreement between the parties was focused on whether any confinement that occurred was for a significant period of time, as required by R. v. Pritchard, 2008 SCC 59 at para. 24. The defence argued that the nine or 10 seconds during which A.G. was attacked was not a significant period of time. However, A.G. testified that her initial estimate of the time was much longer. In other words, while the length of time may not appear significant to somebody objectively observing the events on a video screen, it seemed significant to A.G., the person who was the victim of the offence. This inclines me to the view that what took place constituted an unlawful confinement.

III. Disposition

[33] For the reasons I have explained, I am not satisfied beyond a reasonable doubt that Mr. Hodgson was the person responsible for the attack on A.G. As a result, he is found not guilty on all counts.

[34] My conclusions should not be taken as in any way minimizing the seriousness of what happened to A.G. She was the victim of a horrific crime. Were it not for her courage and presence of mind, one can only imagine what might have happened to her. It is my sincere hope that she will be able to put this terrible episode behind her.

Justice P.A. Schreck Released: October 30, 2017