COURT FILE NO.: CR-17-008 DATE: 2018-11-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN P. Keen, for the Crown

• and -

D.D.1 M. Van Walleghem, for the Defendant Defendant

HEARD: August 1, 2, 3, 2018 in Kenora, Ontario Mr. Justice J.S. Fregeau

REASONS FOR JUDGMENT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PBULICATION PURSUANT TO SECTION 486.4 OF THE CIRMINAL CODE BY ORDER OF J. FREGEAU, SUPERIOR COURT OF JUSTICE DATED AUGUST 1, 2018

Introduction

[1] The accused is charged that he did, on or about the 12 day of May 2016 in Northwest Ontario, commit a sexual assault on T.M., contrary to s. 271 of the Criminal Code and that on or about the 12 day of May 2016 in Northwest Ontario, he did for a sexual purpose touch T.M. with a part of his body, to wit his penis or hand, contrary to section 151 of the Criminal Code.

The Case for the Crown

T.M.

[2] Ms. T.M. (or “the complainant”) was born on […], 2001. On the date of the alleged offences she was 15 years old. At the time of trial she was 17 years old. The accused is her cousin whom she has known since age six.

[3] On May 12, 2016, Ms. T.M. was residing in Dryden, Ontario with her grandmother and attending D[…] High School. Ms. T.M. testified that around this time she was in contact with the accused approximately five times every six weeks.

[4] Ms. T.M. was at home on May 12, 2016, and communicating with the accused by Facebook Messenger. She testified that she was wearing a white sweatshirt, black pants and underwear that day. According to Ms. T.M., she was feeling sad and the accused offered to buy some alcohol, pick her up, take her for a ride down rural roads outside of Dryden and “get me drunk”.

[5] Ms. T.M. testified that the accused picked her up in a black minivan during the early afternoon of May 12, 2016. She identified the blue Dodge van in exhibit 4, tab 10 as the vehicle the accused was driving when he picked her up.

[6] Ms. T.M. testified that when the accused picked her up he had a bottle of Smirnoff Lime vodka with him. According to the complainant, the accused drove to a Petro-Pass gas station on the north side of Dryden, purchased gas, proceeded to leave town and drive down rural gravel roads north of Dryden with her.

[7] Ms. T.M. testified that the two of them drove around for between one and two hours, during which time she was drinking vodka and being taught to drive by the accused. At one point in time, Ms. T.M. asked the accused to pull the van over so she could vomit. He did so and she proceeded to urinate and vomit in the woods.

[8] Ms. T.M. next recalls falling asleep in the rear of the van. The third row of seats was not in the van. According to her, she awoke to the accused pulling her pants down and unbuckling his belt. She testified that her pants and underwear were pulled down to her ankles as she was screaming at the accused to stop.

[9] Ms. T.M. testified that the accused got on top of her and that she felt pain “in the genitals”, specifically her vagina and “sharp pain” in “both areas”, referring to her vagina and anus. According to Ms. T.M., she was “out of it” due to alcohol consumption, kicking, squirming and screaming while being assaulted by the accused.

[10] Ms. T.M. stated that the accused stopped “after like 15 minutes of me squirming too much” and she then jumped over the seat in the second row and got out of the van and started to walk back to town. She testified that she was on a gravel road with trees all around.

[11] According to Ms. T.M., the accused told her to get back in the vehicle, which she did. She then fell asleep again. She next recalls the accused picking up a S.C. and driving to the accused’s house. Ms. T.M. testified that she was “really drunk…staggering and puking” and “wanted to go to bed”. She went to sleep on the accused’s couch.

[12] Ms. T.M. testified that she awoke the next morning and messaged her friend and her mother’s boyfriend that “something bad happened”. She agreed to meet her mother, which she did. Her mother then took her to the police station from where she was taken to the hospital.

[13] Ms. T.M. was shown exhibit 4, tab 9, being two photographs. One she identified as a photograph of herself in the side rear view mirror of a vehicle, taken by her. The other she identified as a photograph of the bottle of vodka in her hand, with “a couple of shots taken out of it”, also taken by her.

[14] On cross examination, Ms. T.M. disagreed with counsel’s suggestion that the accused picked her up initially, drove around, dropped her off and then picked her up a second time, with her intoxicated when picked up by the accused the second time.

[15] Ms. T.M. agreed with the suggestion that she was lying in the van on her back with her head at the back door and her legs in the aisle between the back seats when the accused allegedly sexually assaulted her. She also agreed that she had not told the police about the accused entering her anus, testifying that she “didn’t even know (that that happened) until the last trial”. She further testified she “just remember it hurting”, referring to her anus, and that she did not feel comfortable telling the police about it.

[16] Ms. T.M. agreed that she had used the toilet when back at the home of the accused.

Sandra Ottertail

[17] Ms. Ottertail has been a registered nurse since 1991 and a nurse practitioner practicing in Dryden since 2009. She successfully completed the Sexual Assault Nurse Examiner course in 2011. Ms. Ottertail completed the sexual assault examination forms for the examination she conducted on Ms. T.M. on May 13, 2016. She explained that she followed the prescribed protocol when conducting the examination.

[18] Ms. Ottertail’s examination of Ms. T.M. did not disclose any physical injuries. When collecting the vaginal and rectal swabs from Ms. T.M., the complainant was lying on her back with her genital and anal areas exposed. The external and internal vaginal swabs were taken first.

[19] To obtain the rectal swabs from Ms. T.M., Ms. Ottertail explained that she had to “support the butt cheeks open with your one hand…the left hand” and then insert the swabs with her right hand through the sphincter, approximately one inch into the rectum, without touching the butt cheeks or any other skin in that area. According to Ms. Ottertail, the rectal swabs did not touch anything other than Ms. T.M.’s anus and the inside of her anus. Two rectal swabs were taken.

[20] Ms. Ottertail explained that she then placed the first rectal swab into the sterile container provided with the kit. The second rectal swab was rolled onto a glass slide to create the rectal smear, which was then placed into another sterile container provided with the kit.

[21] On cross examination, Ms. Ottertail explained that the skin of the complainant’s butt cheeks was held back when the rectal swab was inserted into the anus, but that the anus itself can’t be opened. The rectal swab has to pass through the sphincter.

[22] Ms. Ottertail was unable to comment on whether or not “it was typical” that there would be no injuries observed on a sexual assault complainant. She also testified on cross examination that there sometimes is and sometimes is not “tearing” observed on a complainant who alleges forced anal intercourse.

Constable Ron Fults

[23] Constable Fults was a Detective Constable with the Dryden detachment of the Ontario Provincial Police in May 2016. On May 13, 2016, Constable Fults was informed by his Sergeant that the accused had contacted the Dryden Police Service by telephone indicating that he had heard that the police were looking for him. The accused had left a cellphone number to allow the police to call him back.

[24] Constable Fults called the accused at the cellphone number he had left. The accused told Constable Fults that he was driving a blue Dodge van and was pulled over on the highway west of Dryden. The officer advised the accused that he was going to be arrested and charged for sexual assault. He asked the accused to attend the Dryden OPP detachment in order to be arrested. The accused was agreeable and compliant.

[25] Constable Fults wanted to arrest the accused in his vehicle so that he could seize the van incident to arrest. He proceeded to travel west of Dryden and in due course encountered the accused in his vehicle travelling east toward Dryden. The officer stopped the vehicle, confirmed the identity of the driver as the accused and arrested him for sexual assault.

[26] The blue Dodge van was seized, towed to the OPP detachment garage and searched by Identification Officer Wilkins pursuant to a warrant.

[27] Constable Fults also, on the day he testified, obtained an internet photograph of a bottle of Smirnoff Lime Vodka, which was then filed as an exhibit.

[28] On cross examination, Constable Fults testified that he observed a blue blanket and a purple blanket “in the backseat of the floor of the van”. He did not look into the extreme rear of the van. Referring to a list of items seized by Identification Officer Wilkins, Constable Fults testified that an LCBO bag, a purple blanket, a blue sweater, a gray and blue sweater and a red sweater were seized from the van.

Michael Bissonnette

[29] Mr. Bissonnette is employed as a forensic scientist with the Centre of Forensic Sciences Northern Regional Laboratory in Sault Ste. Marie. He was qualified, on consent, as an expert in DNA analysis, bodily fluids and the transference of DNA.

[30] Mr. Bissonnette explained that the deposition of DNA is the act of the DNA in bodily fluids going from the primary source onto another surface. The transference of DNA is the act of that deposited DNA going from the original surface to another surface.

[31] Mr. Bissonnette was referred to the July 22, 2016 DNA Report of Christopher Askew, adopted by him on consent of the accused, which detailed the results of the analysis of the sexual assault examination kit performed on the complainant. The items examined were an oral swab, an external genitalia swab, a vaginal swab, a rectal swab and a comparison sample of the complainant’s DNA.

[32] Mr. Bissonnette explained that the DNA results confirmed spermatozoa on the rectal swab taken from the complainant. On the external genitalia swab of the complainant, male DNA was present, however insufficient male DNA was detected to attempt to generate a DNA profile such that this sample was not processed further. No male DNA was found on the vaginal swab and it was not processed further. Mr. Bissonnette testified that a male DNA profile from semen was then generated from the rectal swab.

[33] Mr. Bissonnette was next referred to his Biology Report dated November 9, 2016. Within this report, Mr. Bissonnette was asked to perform body fluid analysis on the rectal smear generated from the examination of the complainant. Mr. Bissonnette explained that semen was detected microscopically on that rectal smear.

[34] Mr. Bissonnette was then referred to his Biology Report dated December 22, 2016. This report referred to the testing of a comparison sample submitted from the accused for comparison to the previously generated DNA profile. Mr. Bissonnette concluded that the accused could not be excluded as the source of Profile 1 from semen on the rectal swab taken from the complainant. He further explained that the Random Match Probability (the probability that any randomly selected individual would coincidentally share the observed DNA profile with the true contributor) was one in 11 trillion. Mr. Bissonnette testified that no two individuals other than identical twins have been observed to share the same DNA profile.

[35] Mr. Bissonnette testified that “it is possible” for semen to transfer from a surface, then contact a person’s anal sphincter and be brought up into the anal canal. He explained that “semen transfers most readily if it’s still in its wet fluid form” and that “dried stains do not transfer as readily”. He explained that “porous or fabric surfaces” tend to bind the DNA that is transferred more tightly than a hard surface such as a pane of glass.

[36] On cross examination, Mr. Bissonnette confirmed that he conducted a microscopic examination of the rectal smear taken from the complainant and that his notes of this examination read, “Sparse cellular material. One spermatozoa located at…and no tail”. He explained that the rectal smear is actually a small subsection of the rectal swab – “a small, very small sample size of all the genetic material that’s present on that swab as a whole. So observation of a sperm on the rectal smear, that means that there are additional sperm present on that rectal swab as it is a small subsection”. Mr. Bissonnette confirmed that it was his opinion that “there were additional spermatozoa on that swab”.

[37] Further on cross examination, Mr. Bissonnette testified that sperm would be transferred more readily from a hard non-porous surface than from a porous fabric surface. When asked whether it was possible that sperm could have been transferred from a toilet seat, Mr. Bissonnette responded that “if there was semen present in a specific area on that toilet seat which she then contacted with her anal area it is possible that spermatozoa could transfer…it would more readily transfer in the fluid form as opposed to in a dried state”.

N.K.

[38] In May of 2016, Ms. N.K. and S.C. were domestic partners living together in Dryden and working with the accused in a small cleaning business. She identified the blue Dodge minivan in exhibit 4, tab 10, photograph 1, as the van owned by her employer and used by her, Mr. S.C. and the accused in the cleaning business. She testified that the photograph at exhibit 4, tab 10, photograph 6, being a photograph of the extreme rear interior of the van, is how the van was always configured for work purposes. Ms. N.K. testified that she had never seen blankets or pillows in the back of this van.

[39] During the evening of May 12, 2016, Ms. N.K. was at their home in Wilson’s Trailer Park in Dryden with Mr. S.C.. They had friends over and were enjoying a few drinks. She testified that she was “tipsy” but did not have difficulty walking or talking.

[40] According to Ms. N.K., the accused arrived at their home that evening at between 10:00 pm and 11:00 pm. She asked Mr. S.C. and the accused to go out and get her some food. They agreed to do so and returned with food after which Ms. N.K. observed the accused drinking what she recalled to be “Green Apple Vodka”. She observed the vodka bottle to be an opened 26 ounce bottle with approximately four to six inches of vodka remaining in it.

[41] She clarified that the accused had brought this vodka bottle to their home and that she found it empty outside of her trailer the next day.

[42] On cross examination, Ms. N.K. was consistent in her recollection that the vodka bottle brought to her home by the accused was approximately one-half full when he arrived.

S.C.

[43] Mr. S.C. was subpoenaed as a witness for this trial and did not appear. A material witness warrant was issued for his arrest. The warrant had not been executed when Mr. S.C. was scheduled to testify. Crown counsel and the accused chose not to delay the trial in the hope that Mr. S.C. would be located.

[44] On consent of the Crown and the accused, an edited and redacted transcript of his February 10, 2017, testimony from the preliminary hearing was filed as exhibit 5, the agreement being that the copy of the transcript filed was to be treated as his evidence for the purposes of this trial.

[45] On the evening of May 12, 2016, Mr. S.C., Ms. N.K. and two friends were at his home having “a few drinks”. According to Mr. S.C., between 11:00 am and 1:00 pm on May 12, 2016, he and the accused “talked about linking up to talk about a job the next day”. Between 9:00 pm and 10:00 pm the same day, the two of them communicated by text messages “about him (the accused) dropping by and talking about the job the next day”.

[46] Mr. S.C. testified that the accused dropped over to his place at around midnight, at which point Mr. S.C. was intoxicated. He described the accused’s demeanour as normal. Approximately 45 minutes after the accused arrived, Mr. S.C. and the accused left in the Dodge minivan to get food. Mr. S.C. observed a “young woman” whom he did not recognize sitting in the passenger seat in the second row of the van wrapped in a blanket. Mr. S.C. described this person to be “fairly intoxicated. She looked like in rough shape, she’d been sick a couple times”.

[47] Mr. S.C. testified that they drove from his residence in Wilson’s Trailer Park to the accused’s home where they dropped the young lady off. They then went to McDonald’s and back to his house. According to Mr. S.C., the accused helped the young lady out of his van and assisted her into his house, being inside for “a minute or two tops”.

[48] Mr. S.C. testified that the accused remained at his house for about two hours after they returned. He did not observe the accused drinking at his home.

[49] On cross examination, Mr. S.C. agreed that the young lady he had seen in the accused’s van “visibly looked very drunk”, was slurring her words and was having difficulty walking.

The Evidence for the Accused

D.D.1

[50] Mr. D.D.1 confirmed that Ms. T.M. is his cousin. He testified that, during the period prior to May 12, 2016, Ms. T.M. called him every second or third day when she was drunk and a few times when she was sober during the day.

[51] Mr. D.D.1 testified that May 12, 2016, was a scheduled day off for him. He awoke at about eight or nine that morning. At approximately 10:00 am, the accused received a text from the complainant’s “half-sister”, who apparently advised the accused that she was concerned about the complainant and asked him to talk to her to try to cheer her up. Mr. D.D.1 testified that he agreed to do so and would wait for her to call.

[52] Mr. D.D.1, an Aboriginal man, testified that he had intended to “feast his spirit” on his day off. At approximately 1:00 pm, he received a call from his brother D.D.2 who asked him to buy him a bottle of Smirnoff vodka that day, which the accused agreed to do.

[53] Mr. D.D.1 testified that he got a call from the complainant at about 2:00 pm on May 12, 2016, asking if he would pick her up. He agreed to do so and picked up the complainant at about 3:00 pm that day. He testified that he told her that he would not be able to “drive around” with her that day because of work commitments that had just arisen. According to the accused, the complainant told him, “that’s ok I’m going to hang with my boyfriend anyway”. At her request, he dropped her off “over by the 7-Eleven” at approximately 3:30 pm.

[54] Mr. D.D.1 further testified that he had bought the bottle of vodka for his brother before he had picked up the complainant. After he dropped the complainant off, he testified that he drove out the Ghost Lake Road, north of Dryden, to feast his spirit. According to the accused, as he was returning to town he received a call from his brother at about 4:30 pm asking if he could pick him up from work which he agreed to do.

[55] The accused testified that he next picked up his brother at about 5:00 pm on May 12, 2016, and gave him the bottle of vodka that he had purchased. His brother opened the bag and noticed that the accused had purchased lime vodka by mistake. The accused agreed to keep the bottle and return it to the LCBO. The accused then dropped his brother off at his house because he was staying with the accused.

[56] According to the accused, he next attended to some work chores as previously arranged. He testified that his work obligations that evening included him checking up on a cleaner he was supervising who apparently was not doing her job properly. The accused testified that he did so and, as he was travelling from job site to job site, at approximately 9:30 pm, he received a call from Mr. S.C. who he was to work with the next day. Mr. S.C. apparently asked the accused to stop by his place to discuss the work scheduled for the following day.

[57] The accused testified that shortly thereafter he received another call from the complainant, who he described as screaming and crying. He agreed to pick her up which he did shortly thereafter. According to the accused, the complainant was “really drunk”. He asked her to get in the back seat behind the driver’s seat because he was afraid she was going to vomit.

[58] According to the accused, he began to drive and the complainant started to vomit. He then asked the complainant to get into the extreme back of the vehicle because this area was already dirty. The complainant did so and continued to vomit in the back of the van. The accused testified that the complainant then got angry and said to him, “What are you going to do? Rape me again Marcel.” The accused testified that he then stopped the van, went around to the back, ripped open a bag of clean blankets his mother had laundered for him and laid down blankets for the complainant to vomit on. He then drove to S.C.’s house at Wilson’s Trailer Park, arriving at approximately 10:30 pm.

[59] The accused testified that he was invited into Mr. S.C.’s and Ms. N.K.’s home but declined, explaining that he had his cousin in the car, that she is “hammered” and that he had to get her to his house. According to the accused, he told Mr. S.C. that they had to start work the next day at 8:30 am, to which Mr. S.C. replied that he was not available until noon. The accused testified that he agreed to the later start time suggested by Mr. S.C..

[60] At this point, according to the accused, he observed the people at Mr. S.C.’s home to be “having a blast and…running out of booze”. He therefore offered them the bottle of vodka that he had purchased for his brother and which was in his van. Mr. S.C. told the accused that he had no money. The accused told Mr. S.C. that he could pay him on payday. Mr. S.C. agreed and the accused gave them the vodka from the van.

[61] The accused testified that Mr. S.C. then asked him to take him to McDonald’s, which he agreed to. The two of them got in the van and the accused saw the complainant to be now sitting in one of the seats. According to the accused, he drove to his house to drop off the complainant. According to the accused, Mr. S.C. “jumped out and opened the backdoor and helped her inside” and then helped the complainant to the couch.

[62] The accused testified that he and Mr. S.C. then went to McDonald’s where Mr. S.C. offered to buy him a meal, which the accused accepted. They returned to Mr. S.C.’s home and the accused accepted an invitation to join them inside. According to the accused, “they drank that bottle”, referring to the bottle of vodka he had given them. The accused left at about 3:30 am to 4:00 am., returned home and went to bed.

[63] According to the accused, he woke up the next day at 11:30 am and his house was empty. He picked up his employees and drove to a job site in Vermillion Bay. The accused testified that he soon received a text from “the half-sister, or whatever it is” saying, “I can’t believe you raped your cousin”. This led to the accused calling the police to ask if they were looking for him and then to his eventual arrest, as described by Constable Fults.

[64] The accused denied that he had drove the complainant around on rural gravel roads north of Dryden during the afternoon of May 12, 2016, and denied that he had touched the complainant sexually on May 12, 2016.

[65] On cross examination, the accused testified that between 5:30 pm and 7:30 pm on May 12, 2016, he was working at C[…] doing odd jobs after which he attended at Gardewine Trucking, Acklands and Ricci’s Trucking “checking on a cleaner who wasn’t doing their job”. He advised the court that this cleaner’s name was “Jenn” and that she was currently a Tikinagan Child and Family Services worker who was responsible for his family’s file. He confirmed that she was working “that evening”, referring to May 12, 2016.

[66] The accused was shown exhibit 3, the internet photograph of a bottle of Smirnoff Lime vodka. He agreed with the suggestion that it was impossible to see through the solid green cap on this type of a bottle. The accused identified exhibit 7, a photograph of a blue van with a cracked windshield as the work van that he was driving on May 12, 2016. He also identified exhibit 8 as a photograph of this van with the front passenger door open, showing the passenger and driver’s seats and the dashboard.

[67] After the accused had been given an opportunity to review a witness statement of Jenn Betca, obtained subsequent to his alibi evidence involving this party, he testified that he had been mistaken in his previous testimony and that he had not in fact met with “Jenn” on the evening of May 12, 2016. This statement indicated that “Jenn” never worked at Gardewine or Ricci’s Trucking. When confronted with this information, the accused testified that he “was mistaken on who the employees were”.

[68] On cross examination, the accused acknowledged that he had been scheduled to meet with M.S., the owner of C[…], during the morning of May 13, 2016, in regard to an apparent theft by Mr. S.C. of an IPAD from a customer. He was asked to explain why he would have met with Mr. S.C. during the evening of May 12, 2016, in the circumstances he had earlier described, if he was to meet with him the next day to confront him over this theft.

[69] He explained that Mr. S.C. had initially asked him to come over that evening to discuss the next day’s work schedule. He agreed that he had discussed with Mr. M.S. terminating Mr. S.C. prior to his going to Mr. S.C.’s home on the evening of May 12, 2016. He did not acknowledge the apparent incongruity of this scenario.

[70] The accused was shown exhibit 6, being two photographs. He agreed that the first photograph in exhibit 6 was of the complainant depicted in the rear view mirror of his van taking a photograph of herself in the mirror on what “could be” a rural gravel road. He then stated that he didn’t think it was his van in the photo.

[71] The second photograph in exhibit 6 is of the complainant grasping an apparently open bottle of Smirnoff Lime vodka by the neck of the bottle with her right hand with the dashboard of the Dodge van in the background. When shown this photograph, the accused testified that, “this one is my van I do believe…our van looks like this”. He went on to explain that “T.M. grabbed the bottle, took it out, was playing with it, taking pictures with it and she was going to open it”. When asked why he did not offer this information during his direct examination, the accused testified that he “generalized the timeline of my day”.

[72] The accused was again referred to this second photograph in exhibit 6. The accused testified that he told the complainant not to open the bottle, that “she never drank out of it…she might have opened (it)”. He disputed the evidence of Ms. N.K. when she told the court that this bottle was only partially full when given to her and Mr. S.C. by the accused. He agreed that the bottle held by the complainant in the second photograph in exhibit 6 did not have a cap on it.

[73] The accused “agree(d) with the DNA expert” in regard to his semen being found “on T.M.’s sphincter or inside her anus” but disagreed with the complainant’s evidence as to how it got there. He testified that the complainant was not at any time naked while in his presence May 12 or May 13, 2016.

[74] On re-examination, the accused testified that he met with Mr. M.S. at Mr. M.S.’s house between 5:30 pm and 6:30 pm May 12, 2016. He explained that he did not previously give this evidence because “I couldn’t recall. I didn’t recall”.

[75] When questioned by the court, the accused agreed that his DNA was found within the rectal cavity of the complainant. His explanation as to how it got there was that the complainant used the toilet in his house and that “I masturbate in the washroom”.

[76] This prompted further questioning by the Crown. The accused explained that he masturbated “when I’m sitting on the toilet” and that although he tries to “…clean it up. Things get missed…”

[77] In response to defence counsel asking the accused how he thought the semen got on the rectal swab, the accused testified that it was either transferred from his toilet seat and onto the complainant or that “somebody put it there”, suggesting that it was planted evidence.

D.D.2

[78] D.D.2 is the younger brother of the accused. In May 2016, he was living with his brother and employed in Dryden as a mechanic helper with EmCom, a highway maintenance company. He recalled that he worked 8 am to 5 pm on May 12, 2016. Mr. D.D.1 testified that he did not have a key to his brother’s house and that his brother had to let him in after work and at all other times.

[79] Mr. D.D.1 testified that he recalled that his brother picked him up from work shortly after 5:00 pm on May 12, 2016, and drove him home.

[80] On cross examination, Mr. D.D.1 acknowledged that he had told the police that he wasn’t sure that his brother had driven him home after 5:00 pm on May 12, 2016. He also agreed with the suggestion put to him on cross examination that he was unsure that this drive home and his request for his brother to buy him a bottle of vodka occurred on May 12, 2016.

M.S.

[81] Mr. M.S. is the owner of C[…]. He identified the accused as the Janitorial Maintenance Manager for his company.

[82] Mr. M.S. agreed that he provided a statement to the police the day before he testified. This statement was obtained at this late date as a result of the accused’s trial evidence. Mr. M.S. agreed that, in this statement, he indicated that he met with the accused and Mr. S.C. on May 12, 2016.

[83] On direct examination, he indicated that he did not have any written record of meeting with Mr. S.C. and the accused on May 12, 2016, and that “I could be wrong. I don’t know”.

[84] On cross examination, Mr. M.S. agreed that he generally communicated with the accused by text message and that if he had in fact contacted him on May 12, 2016, about a meeting that day there should have been a text message of that communication. He testified that he did have a text message between him and the accused at 11:54 am on May 12, 2016, referencing a meeting the next day but nothing about a meeting the afternoon of May 12, 2016.

[85] Mr. M.S. testified that he did recall, from memory, a meeting between him, the accused and Mr. S.C. on his front porch, after work, on May 12, 2016.

The Positions of the Parties

The Accused

[86] The accused submits that the sexual assault examination conducted by Ms. Ottertail disclosed no injuries or bruising on the complainant nor did it disclose any tearing of her anal tissues. It is contended that a violent sexual assault such as described by the complainant, including forced anal intercourse, would have caused some injuries on the complainant.

[87] The accused submits that no foreign DNA was detected in the complainant’s vaginal cavity and that only a very small microscopic amount was detected in her anal cavity. The accused suggests that this finding is more consistent with semen being transferred onto and/or into the complainant’s anal cavity than with anal intercourse and ejaculation. In support of this submission, the accused submits that transference from either the bedding in the accused’s home or from the accused’s toilet seat subsequent to him ejaculating while sitting on the toilet is a possibility raising a reasonable doubt as to guilt.

[88] The accused further submits that the alibi evidence from the accused’s brother and from Mr. M.S. is inconsistent with the evidence of the complainant. The complainant alleges that she was with the accused continuously from early in the afternoon on May 12, 2016, until late that evening when he dropped her off at his house.

[89] The accused’s brother, D.D.2, testified that the accused picked him up from work at approximately 5:00 pm on May 12, 2016 and drove him home. Mr. M.S. testified that he met with the accused and Mr. S.C. at his home on May 12, 2016, in the late afternoon, “after work”.

[90] The accused acknowledges some weakness in the reliability of the alibi evidence. However, the accused submits that if the alibi evidence raises a reasonable doubt in the court’s mind, an acquittal must follow. The accused submits that the alibi evidence of these two witnesses is sufficient to raise a reasonable doubt.

[91] The accused also points to the physical difficulties, if not the physical impossibility, of the sexual assault occurring as described by the complainant, given the size and configuration of the Dodge van, the physical size of the accused and the specific sexual acts described by the complainant. The accused submits that this is also sufficient to raise a reasonable doubt.

[92] In summary, the accused submits that on all of the evidence, there exists a reasonable doubt that the accused sexually assaulted the complainant as she described on May 12, 2016. If such a reasonable doubt exists, the accused submits that this court must acquit.

The Crown

[93] The Crown submits that the DNA evidence, which confirmed the presence of the accused’s semen within the rectal cavity of the complainant, expressly accepted by the accused, is in and of itself, sufficient to prove the Crown’s case beyond a reasonable doubt.

[94] The Crown further submits, given that the accused testified and that his credibility is in issue, that the R. v. W. (D.) (1991), 63 C.C.C. 397 (S.C.C.) analysis is engaged. The Crown suggests that there are multiple reasons to disbelieve the evidence of the accused and to find that it does not raise a reasonable doubt.

[95] The Crown submits that the evidence of the accused that he had no sexual contact with the complainant on May 12, 2016, is directly contradicted by the complainant, who testified that the accused pulled her pants and underwear down after which she felt pain in her genitals and her anus.

[96] Second, the Crown submits that accused provided three potential alibis, the first of which has been disproven and the other two which have been substantially shaken.

[97] The accused testified that, during the evening of May 12, 2016, he had to check on the work of a particular cleaner, namely Jenn Betca. When confronted with her statement which directly contradicted his evidence on this point, the Crown submits that the accused simply changed his evidence, saying he had been mistaken as to which cleaners he checked on that night.

[98] The second alibi witness was the brother of the accused, D.D.2, who testified that the accused picked him up after 5:00 pm on May 12, 2016, and drove him home. The Crown submits that the reliability of this evidence was shaken on cross examination when Mr. D.D.1 testified that he was not sure that this had in fact occurred on May 12, 2016.

[99] The third alibi witness was M.S., who testified that he met with the accused and Mr. S.C. after work on May 12, 2016. On cross examination, the Crown submits that Mr. M.S. expressed uncertainty as to whether this occurred on May 12, 2016. The Crown further submits that Mr. M.S. had no written record of this meeting to substantiate his recollection, which appeared to be contrary to his usual practice.

[100] The Crown further submits that the accused should not be believed because the accused’s evidence changed throughout his testimony as required when confronted with contradictory evidence. The most significant of the several examples of this provided by the Crown is the accused initially agreeing that the van in the photographs tendered in evidence was his van and then later disputing that fact when it was pointed out to him that these same photographs depicted the complainant holding an apparently open bottle of Smirnoff Lime vodka while sitting in the van.

[101] The Crown further submits that many aspects of the accused’s evidence are in direct conflict with the evidence of other witnesses. One example of this provided by the Crown is that both the complainant and N.K. testified that the vodka bottle was opened and partially consumed before the accused arrived at Ms. N.K.’s home on May 12, 2016. Their evidence on this point was also corroborated by the photograph of the complainant holding an obviously open bottle of Smirnoff Lime vodka. However, the accused insisted the bottle was sealed when given to Mr. S.C.. A second example provided by the Crown is the accused’s denial of having travelled on rural gravel roads with the complainant on May 12, 2016, despite photographs of the complainant in his van on what appear to be rural gravel roads.

[102] For all of the foregoing reasons, the Crown submits that the evidence of the accused should not be believed nor should it raise a reasonable doubt.

[103] Addressing the defence submissions in relation to the DNA evidence, the Crown submits that these submissions are simply not supported by any evidence. The Crown submits that there is no evidence to allow this court to find a reasonable doubt based on the theory of transference of the accused’s semen from the toilet seat in his home into the rectum of the complainant. The Crown submits that the accused’s evidence that he had, at some unknown point in time, masturbated while sitting on the toilet seat and that transference occurred when the complainant subsequently used his toilet on May 12 or May 13, 2016 is speculative, at best.

[104] The Crown also submits that the accused’s bare assertion that his DNA was planted by unidentified third parties should be rejected on the basis that no evidence whatsoever was led to support this scenario.

[105] Pursuant to all of the foregoing, the Crown submits that the evidence of the accused should not be believed nor should it or any of the evidence provided by the accused raise a reasonable doubt as to guilt.

Analysis

[106] The accused is charged with sexually assaulting and the sexual touching of the complainant on May 12, 2016.

[107] The complainant has testified that the accused drove her to and on gravel bush roads north of Dryden, Ontario, in his Dodge van during the afternoon and early evening of May 12, 2016. The complainant alleges that, while the two of them travelling in the accused’s van on this date, the accused provided her with a bottle of Smirnoff Lime vodka, which she partially consumed, becoming intoxicated.

[108] The complainant further alleges that she passed out due to alcohol consumption and awoke to find the accused pulling her pants and underwear down to her ankles, after which she felt pain in her genital and anal areas. The complainant further testified that she managed to extricate herself from the accused, get out of the van and begin to walk in what she believed to be the direction of Dryden.

[109] The complainant testified that she got back in the van at the request of the accused, after which he drove her back into Dryden and eventually to his home where she slept on the couch and woke up the next day.

[110] The accused testified in his own defence. The accused testified that he did in fact pick up the complainant in his van during the afternoon of May 12, 2016, but that he only had her with him for a short period of time due to work commitments on his part. It is the evidence of the accused that he dropped the complainant off within the town of Dryden shortly after he picked her up that afternoon. The accused denied driving the accused north of Dryden on gravel roads, denied providing her with alcohol and denied any sexual contact with the complainant.

[111] The accused testified that he was contacted by the complainant again, later on May 12, 2016, at which time the complainant was highly intoxicated and upset. According to the accused, he picked the complainant up in his van a second time during the evening of May 12, 2016, in response to this call, and eventually took her to his residence, where she was escorted inside and put on the couch to sleep.

[112] As a result of the conflicting evidence of the complainant and the accused, the credibility of both is in issue. If I believe the evidence of the accused, I must acquit him of both charges. If I do not believe the testimony of the accused, but am left in a reasonable doubt by it, I must acquit. Even if I am not left in doubt by the evidence of the accused, I am required to ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[113] Firstly, I do not believe the evidence of the accused nor am I left in reasonable doubt by it.

[114] The accused agreed that he picked the complainant up in his Dodge work van during the afternoon of May 12, 2016, consistent with the evidence of the complainant. The accused agreed that, prior to doing so, he purchased a bottle of Smirnoff Lime vodka. It is admitted by the accused that he did so on May 12, 2016, at 3:44 pm. An LCBO receipt confirming this has been filed on consent. This is also consistent with the evidence of the complainant that the accused had this bottle with him when he picked her up.

[115] Video evidence admitted on consent shows the accused’s van stopping for gas at the Dryden Petro-Pass gas station on May 12, 2016, at 3:56 pm. This is 12 minutes after he purchased the bottle of Smirnoff Lime vodka and consistent with the evidence of the complainant that the accused stopped for gas at the Petro-Pass station after he picked her up and before travelling north of Dryden with her.

[116] During his direct examination, the accused failed to mention stopping at the Petro-Pass station for gas on May 12, 2016. In cross examination, he included this fact but asserted that he did so only after dropping the complainant off the first time during the afternoon of May 12, 2016. When then asked on cross examination how the complainant could have known that he had gone to the Petro-Pass station after he dropped her off, the accused testified that he told her this fact.

[117] When pressed as to why it would have been necessary to share this mundane fact with the complainant, the accused testified that he wanted to explain to her that he was busy, having to get gas before going north on the Ghost Lake road to feast his spirits, so that the complainant would not feel he was brushing her off at a time of need.

[118] Exhibit 6 consists of two photographs the complainant testified she took during the afternoon of May 12, 2016, while riding in the accused’s van. These are the same photographs found in exhibit 4, tab 9. The first is a photograph of the complainant taken by her with her cell phone depicted in the rear view mirror of a vehicle. The second is a photograph of a right hand grasping the neck of what is obviously an open bottle of Smirnoff Lime vodka, with the dashboard of a Dodge vehicle in the background.

[119] These photographs were put to the accused on cross examination. He initially agreed that the first photograph was of the complainant in a vehicle on what “could be” a bush road. He then stated that he didn’t think it was his van in this photograph. When shown the second photograph of a right hand gripping an open bottle of Smirnoff Lime vodka in a Dodge vehicle, he agree that “this one is my van”. He went on to testify that “T.M. grabbed the bottle, took it out, was playing with it, taking pictures with it and she was going to open it”. When asked why he did not provide this particular evidence on direct examination, the accused testified that he “generalized the timeline of my day”, without further explanation.

[120] When again confronted by this second photograph in exhibit 6, and being pressed to acknowledge that the bottle was obviously uncapped and open, the accused testified that he had told the complainant not to open the bottle and that, “she never drank out of it…she might have opened (it)”.

[121] The accused also testified that this same bottle was full and sealed when given to Ms. N.K. and Mr. S.C. during the evening of May 12, 2016. This is inconsistent with his own evidence and the evidence of Ms. N.K. who insisted that the bottle given to her and Mr. S.C. by the accused was unsealed and only partially full. Ms. N.K.’s evidence on this vital point was not shaken on cross examination. The evidence of Ms. N.K. is consistent with the evidence of the complainant who testified that she consumed alcohol from this bottle to the point of intoxication.

[122] The accused presented alibi evidence in an attempt to account for his whereabouts during the evening of May 12, 2016, and to establish that he was not with the complainant at this time.

[123] On direct examination, the accused testified that, after he dropped his brother off at his house shortly after 5:00 pm on May 12, 2016, he attended to some work obligations which included checking up on a cleaner who apparently was not doing her job properly. On cross examination, the accused testified that this involved attending at Gardewine Trucking, Acklands and Ricci’s Trucking to check up on the work of “Jenn”. He could not recall “Jenn’s” last name, but further identified her as his family’s current child care worker.

[124] Due to the late disclosure of this alibi evidence, court was adjourned, on the consent of the defence, to allow the Crown to identify and obtain a statement from “Jenn”, which was quickly done. Prior to the Crown’s continued cross examination of the accused, he was given the statement of Jenn Betca to review. When cross examination was continued, it was put to the accused that Jenn Betca had stated that she had never worked at Gardewine Trucking or at Ricci’s Trucking. The accused then testified that he had been mistaken and that it was not “Jenn” that he had met with on May 12, 2016, but other employees.

[125] The accused further testified that his brother D.D.2 had asked him to pick up a bottle of vodka for him that day and also called him to pick him up after work, about 5:00 pm on May 12, 2016, and that he did both. According to both the accused and his brother, the accused picked up D.D.2 at work shortly after 5:00 pm on May12, 2016, and drove him home. Both testified that the accused had purchased the wrong kind of vodka, providing an explanation both for its purchase and for why it was retained by the accused.

[126] On cross examination, the reliability of D.D.2’s evidence was shaken. He acknowledged that he had told the police that he was not sure if his brother had driven him home after 5:00 pm on May 12, 2016. He also agreed that he could not be sure at this time that this had in fact occurred on May 12, 2016.

[127] The accused also proffered M.S., the owner of C[…] and his employer, as an alibi witness. Mr. M.S.’s name first came up during the cross examination of the accused in a somewhat different context.

[128] The accused agreed that he was scheduled to meet with his employer the morning of May 13, 2016, in regard to Mr. S.C. having stolen an IPAD from a customer. He also acknowledged having earlier suggested to Mr. M.S. that Mr. S.C. be terminated.

[129] As the accused had testified that he went to Mr. S.C.’s home during the latter part of the evening of May 12 and into the early morning hours of May 13, 2016, giving him a bottle of vodka and socializing with him, the accused was logically asked why he did so if intending to terminate Mr. S.C. the next day. The accused had no explanation for this incongruity.

[130] It was then on re-examination that the accused advised the court that he had actually met with Mr. M.S. at Mr. M.S.’s house between 5:30 pm and 6:30 pm on May 12, 2016. The accused explained that he had not previously offered this evidence because, “I couldn’t recall. I didn’t recall”.

[131] The trial was once again adjourned to allow the police to obtain a statement from Mr. M.S. and to arrange for him to testify for the accused. On direct examination, Mr. M.S. testified that his statement to the police indicated that he had met with the accused and Mr. S.C. on May 12, 2016. However, when asked directly if he had met with the accused and Mr. S.C. on May 12, 2016, he replied, “I don’t have any record of that. I don’t, I can’t say…that’s when I thought it was. It may…I could be wrong. I don’t know”. The court then asked for the question and answer again. Mr. M.S. was asked, “So was there a meeting with D.D.1 and S.C. on May the 12 th ?” Mr. M.S. answered, “Yeah I think there was”.

[132] On cross examination, Mr. M.S. conceded that he did not have an independent recollection of this meeting. He checked his historical text messages and stated that he had, “no documentation of that meeting”.

[133] The cross examination continued back and forth on this point. Mr. M.S. was called at the last minute due to the evidence adduced by the accused. He did his best to accurately recall events from two years prior, of which he had only a vague recollection without corroborating documents. It was obvious to me that he was struggling and was simply not sure if he had or had not met with the accused and Mr. S.C. during the late afternoon of May 12, 2016. I find his evidence to be unreliable.

[134] For all of the foregoing reasons, I do not believe the evidence of the accused nor am I left in a reasonable doubt by it.

[135] On the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused. The reasons for this conclusion follow.

[136] The credibility of the complainant was not shaken on cross examination. Due to her admitted level of intoxication, it is obvious that the reliability of her evidence is in issue and that her evidence has to be carefully scrutinized and analyzed in conjunction with all other evidence.

[137] The complainant’s evidence that the accused picked her up in his van on May 12, 2016, after having purchased a bottle of Smirnoff Lime vodka is corroborated by the LCBO receipt establishing that the accused purchased Smirnoff Lime Flavoured vodka at 3:44 pm on May 12, 2016. The accused also acknowledged this purchase.

[138] The complainant’s evidence that the accused stopped at the Dryden Petro-Pass gas station shortly after he picked her up is consistent with the video evidence, filed on consent, placing the accused’s vehicle at this gas station on May 12, 2016, at 3:56 pm. It is also consistent with the evidence of the accused that he purchased gas for his van before driving north of Dryden to feast his spirits.

[139] The complainant’s evidence that the accused drove her north of Dryden on gravel roads during which time she consumed alcohol from the bottle previously purchased by the accused is, in my opinion, consistent with the two photographs taken by the accused that day and found at exhibit 6.

[140] The first of these two photographs depicts the complainant in the rearview mirror of a vehicle being driven on a road bordered by lichen or something similar with trees in the background. The second of these photographs depicts the complainant in the front seat of a Dodge vehicle grasping an open bottle of Smirnoff Lime vodka by the neck.

[141] The complainant’s evidence that she consumed vodka from this bottle to the point of intoxication is, in my opinion, consistent with the evidence of Ms. N.K. who testified that when the accused arrived at her house during the evening of May 12, 2016, he brought with him a bottle of what she described as “Green Apple vodka” with approximately four to six inches of vodka remaining in it.

[142] The complainant’s evidence as to alcohol consumption and her becoming sick while with the accused on May 12, 2016, is also consistent with the evidence of Mr. S.C., who described her as being in the van with the accused, highly intoxicated and vomiting during the latter part of the evening of May 12, 2016.

[143] Finally, and most significantly in my opinion, the evidence of the complainant that she was sexually assaulted by the accused and that she felt a sharp pain in her anus during this assault was corroborated by the DNA evidence adduced in this trial.

[144] The DNA analysis and evidence establishes to a medical certainty that the accused’s semen was present in the rectal cavity of the complainant on May 13, 2016, when a rectal swab was obtained by Ms. Ottertail. The accused has not challenged this evidence and in fact concedes that his DNA was present in the complainant’s rectal cavity on May 13, 2016.

[145] The accused offers two possible explanations for this finding, neither of which raise a reasonable doubt in my mind.

[146] First, the accused submits that his semen could have been transferred from his toilet seat onto the complainant when she used the toilet at his home on May 12 or May 13, 2016. To support this assertion, the accused testified that he is in the habit of masturbating while sitting on his toilet seat.

[147] Unfortunately, the accused has failed to advise this court of when he may have masturbated on his toilet seat in relation to the point in time when the complainant sat on it on May 12 or May 13, 2016. The submission that transference of his semen may have occurred, either from the toilet seat or from the accused’s bedding, is quite frankly incredible and a possibility that I reject entirely.

[148] The accused has also suggested, even more incredibly and without any evidence in support, that his semen and DNA was somehow, at some time and for some unknown reason, planted on the rectal swab and/or rectal smear of the complainant. I reject this submission.

[149] I do not believe the evidence of the accused nor am I left in a reasonable doubt by it. I am not left in a reasonable doubt by any of the evidence called by the accused. On the basis of the evidence which I do accept, being the evidence of the complainant and the DNA evidence, I am convinced of the guilt of the accused beyond a reasonable doubt.

[150] I am satisfied, beyond a reasonable doubt, that the accused sexually assaulted the complainant on May 12, 2016, and that this sexual assault included penile anal penetration of the complainant by the accused. I am further satisfied, beyond a reasonable doubt, that the accused did, on May 12, 2016, touch the complainant with his penis for a sexual purpose.

[151] The accused is found guilty on Count 1 and Count 2 of the indictment. Convictions will enter on both counts, subject to submissions, if any, as to the application of R. v. Kienapple, [1975] 1 S.C.R. 729.

The Hon. Mr. Justice J.S. Fregeau

Released: November 1, 2018

COURT FILE NO.: CR-17-008 DATE: 2018-11-01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – D.D.1 REASONS FOR JUDGMENT Fregeau J. Released: November 1, 2018 /sf