WARNING

The court hearing this matter directs that the following notice should be attached to the file:

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

This judgment complies with these restrictions so that it can be published.

Court File and Parties

Court File No.: CR-17-3866 Delivered Orally and In Writing: November 14, 2018

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – John Thomas Wuschenny Accused

Counsel: Walter Costa, for the Crown Andrew Telford-Keogh, for the Accused

Heard: March 12, 13, 14, 15, 16, 26, 28, 29, June 6 and 15, 2018

Reasons for Judgment

Pomerance J.:

[1] ST was sexually assaulted by an intruder who broke into her home in September 1990. He forced her to perform fellatio and then insisted that she swallow the ejaculate. The perpetrator wore a pillow case over his face for most of the ordeal, though the victim says that she had one opportunity to see his face.

[2] The central issue at trial is identity. Has the Crown proved that it was the accused, John Wuschenny, who committed the crimes?

[3] The accused was a suspect back in the 1990s, but was not charged. The case was re-opened in 2015, and exhibits were submitted for further testing. The accused’s DNA profile was detected in semen found on a T-shirt believed to have been worn by the victim during the incident. The accused was charged in 2016 with robbery; break, enter and commit sexual assault; sexual assault with a weapon, forcible confinement, disguise with intent, and utter threats.

[4] The accused testified at trial that he did not know the victim. The victim testified that she did not know the accused. The accused insists that he was not the man who broke into ST’s home and sexually assaulted her.

[5] The Crown argues that the semen on the T-shirt is powerful evidence of guilt, particularly when combined with the identification of the accused by the victim in a photographic lineup. The defence argues that the Crown has failed to link the T-shirt to the crimes and that the photo lineup was fatally flawed.

[6] I have carefully considered the evidence and the submissions of Crown and defence. These are my reasons.

Procedural History: the application for a stay

[7] At the outset of trial, the accused applied for a stay of the proceedings based on pre-charge delay and lost evidence. I dismissed those applications: see R. v. Wuschenny, 2018 ONSC 4169.

[8] The defence argued that the pre-charge delay was caused by police negligence, in that they failed to have the T-shirt tested in 1990. It was said that, had they done so, the accused would have been charged many years ago and could have better defended himself. I dismissed the application. Among other things, it was not clear that testing of the T-shirt in the 1990s would have led to charges. At that time, the science of DNA technology was in its infancy. The Centre of Forensic Sciences (CFS) was not routinely conducting DNA analysis and the sample on the T-shirt was too small to be tested by the available technology. Testing the T-shirt would have revealed that the accused had the same blood type as the donor of the semen sample, but so would any number of other individuals. It was only years later, when more sophisticated DNA testing was available, that the T-shirt could yield discriminating evidence of identity.

[9] The lost evidence consisted of an “Evidence Control Sheet”, used by police in 1990 to record what was seized, and what was done with seized items. The evidence control sheet had gone missing in the years since the initial investigation. I ruled that there was no reason to believe that the evidence control sheet would assist the defence in pursuing a Charter claim, or its defence at trial. The absence of the document was far more likely to prejudice the Crown, given its onus to prove guilt beyond a reasonable doubt.

[10] The contours of the case have changed since the stay application. The question is no longer why the police did not send the T-shirt for testing in 1990. The question is whether the police had the T-shirt in their possession in 1990. As for the evidence control sheet, the ruling on that issue was somewhat prophetic. As the trial unfolded, the absence of the document hindered the Crown far more than the defence.

The Evidence

The offence

[11] One night in September 1990, ST was asleep in her bed at home when she heard the sound of a door closing. Her roommates were out for the evening, and she thought that one of them had arrived home. Unfortunately, she was wrong. An intruder had broken into her home. He rushed into the bedroom, jumped on her while she lay in the bed, and sexually assaulted her. The intruder forced her to perform fellatio and insisted that she swallow his ejaculate. He was wearing a pillow case over his head to hide his identity.

[12] During the event, the intruder kept repeating the same threats over and over again: “Don’t look at me. Don’t say anything or I’ll kill you”. The intruder put a pillow over ST’s head and something else over the pillow. She believed that he did this to prevent her from seeing him. She testified that, at one point, the intruder got up off of her and began walking around. She turned her head slightly and, looking up, was able to see his face. He moved the pillow back over her face so that she could no longer see.

[13] After the intruder ejaculated in her mouth, he said “You better swallow it”. He put his hand over her mouth and told her to swallow it, and she did. But she was also intent on spitting some of the semen out of her mouth. She testified that she brought her chin down to her chest and spit some of the semen out onto the bed or her clothing. She could not determine where the semen landed. ST testified that, at the time, she knew about DNA through media and reading and thought that spitting out the semen would help the man get caught. She testified that she told police she had spit out semen during the initial investigation, though none of the police had a note of this. The statements recorded at the time have the victim saying that she swallowed the ejaculate as directed by her attacker.

[14] Before the intruder left, he asked if she had any jewelry. She told him that it was on her dresser and he took two of her rings.

The 1990 investigation

Police Seizures

[15] On September 20, 1990, the day of the incident, ST reported the event to the police. Police attended at her home and seized a number of items as evidence. Among them was the bedsheet that was on the bed when the assault took place, a blouse that had been on the bed and a jewelry box. Police determined that the intruder had moved the picnic table in the backyard to just below the second story bedroom window and gained entry by cutting the screen.

[16] Officer Barbara Everingham took the victim to the Sexual Assault Centre where a rape kit was used to collect samples. She turned the completed kit over to Officer Alan Brown, along with the clothing that the victim was wearing. Officer Everingham did not see the items of clothing. They were turned over to her in a paper bag. Officer Brown did not recall having a conversation with Officer Everingham about the clothing. Nor did he remember dealing with the T-shirt.

[17] The accused was one of the individuals being investigated for the crime. Police attended at his residence and asked if he would provide samples of head hair, pubic hair and saliva on a voluntary basis. He did so. He also provided police with two pairs of running shoes, as a footwear impression had been detected at the scene of the crime.

[18] The bedsheet and blouse were sent by police to the CFS for forensic analysis, along with the rape kit, and biological samples taken from the accused and one other individual. Officer Alan Brown had direct contact with the CFS. He testified that the CFS told him what to send in. There were limitations on resources, and the CFS could not test everything. It was believed that the bedsheet and the blouse were most likely to yield evidence. They were both on the bed when the offence took place. It appeared that there was staining on the bedsheet, and some hairs.

[19] Officer Brown could not recall ever seizing or receiving a T-shirt. He could not recall anything that he might have done with a T-shirt. He did not recall speaking to the CFS about a T-shirt.

[20] The officer’s notes did not assist him in this regard. He listed everything that he seized on an evidence control sheet. That document recorded everything that the officer did with seized items. The evidence control sheet could not be located. It had gone missing sometime between the time of the seizures, and these proceedings.

Testing done at the CFS in the 1990s

[21] According to Melinda Matte, the biologist from the CFS, the CFS began doing DNA analysis in July 1990. In October 1990, DNA analysis was only being used in major serious cases where identification was the main issue, and there was sufficient bodily samples to allow DNA comparison. DNA was not used in this case. Ms. Matte testified that the semen stain on the T-shirt would not have been large enough to permit DNA testing with the technology being used in 1990.

[22] The testing that was done on the bedsheet revealed three separate biological samples. They were compared to a biological sample taken from the accused and, on the basis of blood type he was excluded as a potential donor of all three. The samples taken from the bedsheet were from A secretors. The accused was an AB secretor.

The photographic lineup

[23] In February 1991, the police conducted a photographic lineup with ST to see if she could identify her attacker. The accused, through his lawyer, had refused to participate in a live lineup.

[24] Officer Roberts testified that photos for the array were chosen according to the victim’s description of the suspect. However, he could not testify as to what that description was. He had a description in his notes, but it was the description of the accused that he wrote down when he attended at the accused’s home to get biological samples. The officer testified that the description offered by the victim was in her initial statements. The specifics of that description were not introduced into evidence.

[25] The array consisted of 12 photographs numbered sequentially. Two sheets were produced with 6 photos each. Officer Roberts testified that the victim looked at the sheet with suspects 7-12, placed them aside and said “Definitely none of these”. Looking at the other sheet, she pointed out all the other numbers except five and said “Not him”, touching each photo. As to number five she said, “I get the same feeling that I’ve seen him before in my room…thinking he was good looking, so is number five, so yeah, number five.” She signed the rear of the photograph.

[26] The victim testified on March 15 and 16, 2018. She identified the photo array and confirmed her signature. She testified that, “they all basically look the same, the same description that I had given…it was pretty easy for me to say no, no, no, no, no – but when I got to one photo, I felt very, oh, sick to my stomach and I had a very strong reaction to this one. So I told them that.”

[27] In cross-examination, the victim adopted her statement to Officer Roberts about the intruder and the accused’s photograph being good looking. She explained that she didn’t feel the intruder was a criminal type as he looked ‘clean’. When asked if her memory of the intruder being clean assisted her in picking out the correct photograph, she indicated, “no, because, obviously, these are criminals. They have mugshots.” She went on to say that she recognized the intruder’s face in photograph number five, stating that she didn’t recall the part of her utterance to Officer Roberts that number five was good looking. She concluded that her choice of the accused’s photograph was based upon “a woman’s intuition thing. We have feelings. I felt disgusted and his looks were the same.”

No charges in the 1990s

[28] Police did not lay charges in the 1990s. In February 1991, investigators consulted with a Crown Attorney. The accused was the lead suspect. The Crown advised against charging the accused, on the basis that there was no reasonable prospect of conviction. It was decided that the Crown and investigators would await the report from the CFS. In the meantime, police continued to investigate the accused with surveillance, informants and other methods.

Storing the exhibits

[29] Retired Inspector Brown testified in this proceeding. In 1990, he was the forensics officer assigned to this case.

[30] He testified that he seized items from ST’s residence on September 12, 1990, including the bedsheet and a blouse which was on top of the bed.

[31] He eventually sent a number of items to the CFS. When asked about the items he did not send, he stated “those would have been stored according to the protocol from the Centre of Forensic Science under seal in…in the Forensic Identification office pending further information or if, nothing was going to be processed any further, they would have been sent down to our property room under seal.”

[32] He continued:

[E]ach of them would have been separately sealed so as to not to contaminate them. So if you have a shirt, the shirt would have been in one bag and sealed. Socks would have been in a separate bag and sealed. Underwear under a separate bag and sealed. Everything would have been individually sealed. Anything from suspects would be further sealed in a box separate. Each suspect’s would be different. The victim’s would be different. So you didn’t have the victim’s clothing in with the accused’s clothing. A, a bed sheet, say, with this – oh you always kept each individual’s identity stuff separate from each other…

It would have been sealed top to bottom with tape so that nothing would fall out and it would have been marked a seal number which the Windsor Police Service had, and each one would have been sealed with a number on that. All that would have been listed on our massive evidence control sheets.

[33] His last recollection was that the items not sent to the CFS would have gone down to the Windsor Police property room for storage. Initially they were stored in the investigative unit. He testified that this was in the old Windsor Police Building. Eventually, however, space constraints required that the exhibits be moved from the investigative unit to the vault in another part of the building.

[34] Proper protocol would require another officer to make him aware of anything happening with the exhibits of a case assigned to him. However, he acknowledged that if, “somebody wanted to go down to the property room and get a piece of evidence three years later out of that case, it’s quite possible they got that without me knowing because…they would just have to sign it out and, and deal with it.” No evidence was called to indicate whether exhibits pertaining to this case were ever signed out.

[35] In 1999, the Windsor Police Service moved to a new building. Officer Roberts testified that he was not involved in the transport of exhibits from the old to the new location. He testified that a committee was struck to formulate a process that would allow all of the case related property to be designated and transferred to the new headquarters for continuity purposes. Each time a box was transported, a member of the committee was in the vehicle with the items. Beyond that general description, I heard little evidence regarding details of the protocol for moving exhibits.

[36] When asked if he would have placed the exhibits in the manner that they were found by Constable Hodgins, i.e. individually sealed but kept in one large box, he answered that he would not have done that.

The 2015 Investigation

[37] Years later, in 2015, the investigation was revisited. Constable Hodgins was assigned to locate the case files and evidence, in order to determine whether any exhibits should be retested given changes in technology. By this time, the CFS was not only doing DNA testing, it was using sophisticated testing techniques, which allowed analysis of very small biological samples.

[38] Constable Hodgins located the case material in the property retention room. He took it to the forensic identification branch and contacted the CFS. Items were re-submitted and a white T-shirt was sent to CFS for the first time. Constable Hodgins confirmed that the items stored in the box were properly stored and separated, such that there was no concern about cross contamination. All bags were closed, and all envelopes sealed. He did not recall seeing any staining on the clothing.

[39] Police assumed that the T-shirt in the box was worn by ST at the time of the offences. Forensic DNA analysis revealed a DNA profile taken from a semen stain on the front of the T-shirt. The accused could not be excluded as the source of the semen. Using probability match statistics, the likelihood that the profile in question belongs to someone other than the accused is 1 in 5.7 trillion. The accused admits that it is his semen on the shirt.

[40] Having received the new results, police contacted ST. Officer Fryer told ST: “Good news there was a hit on the DNA”. ST asked: “A hit on what?” and the officer told her “On your T-shirt”. ST asked “what T-shirt” and the officer said “the one you were wearing”. Shortly after that, ST met with police to provide another statement. On this occasion, she told police that she clearly remembered spitting the semen out onto her T-shirt. At trial, she modified her evidence to say that she did not know where the semen went; that she just knew that she spit it out. ST testified that she had earlier assumed that she must have spit it out onto the T-shirt because that is where the accused’s DNA was found.

Analysis

[41] The issue to be determined in this case is identity. Has the Crown proved beyond a reasonable doubt that the accused is the man who broke into ST’s home and assaulted her on September 12, 1990?

[42] Mr. Costa, for the Crown, argues that that guilt is the only reasonable inference to draw from the presence of the accused’s semen on the victim’s T-shirt. The accused and victim did not know each other and had never knowingly had consensual contact. The defence has not presented an alternate explanation. It follows that the accused’s semen was deposited on the T-shirt at the time of the offence. This, it is said, is corroborated by the identification of the accused photograph by the victim during a photographic line-up.

[43] Mr. Telford-Keogh, for the defence, argues that it is not for the accused to posit how his DNA ended up on the victim’s T-shirt. It is for the Crown to prove that the T-shirt was worn by the victim at the time of the offence. Mr. Telford-Keogh argues that there is not a sufficient link between the T-shirt and the offences. He further urges the court to find that the photographic lineup was fatally flawed and of no probative value.

[44] At first blush, the Crown’s case appears strong, for the reasons asserted by Mr. Costa. Absent an alternate explanation for the semen sample, it might be tempting to infer that the semen was deposited at the time of the offence. However, it is important to remember that DNA evidence is circumstantial evidence. Its weight and cogency will depend on the circumstances of the case and the whole of the evidence. As it was put in R. v. Terceira (1998), 123 C.C.C. (3d) 1 (Ont. C.A.) at para. 54, aff’d R. v. Terceira, [1999] 3 S.C.R. 866:

…the ultimate issue with respect to DNA profiling is not guilt or innocence as with a confession. It is but one piece of circumstantial evidence which taken alone may prove very little.

[45] In this case, the probative value of the DNA evidence is diminished by several factors, as canvassed below.

The passage of time

[46] The trial concerns an historical offence, from 25 years ago. This is not unusual per se. However, the passage of time has affected the quality of evidence offered by police investigators. Officers who investigated the case in the 1990s have little recollection of it now and their notes are only of limited assistance in refreshing recollections. In some cases, police could only say that they “would have” done certain things, but could not confirm that they did.

[47] It is also the case that police procedures have evolved over the last 25 years. What we know now allows us to more critically examine what was done then. Police are not at fault for failing to predict changes to come in the future. Yet, the fact remains that procedures used in the 1990s were lacking in safeguards that, today, better protect against misidentification. I will return to this issue.

There are multiple biological samples

[48] This case is unusual because of the number of biological samples potentially linked to the offence. The bedsheet on which the sexual assault occurred contained three separate semen samples, from three separate males, none of whom are the accused. This was established back in 1990, when the samples were examined for blood type. It was confirmed when those samples were subject to forensic DNA analysis. The donors of the semen samples on the bedsheet were unknown in 1990, and remain unknown today.

[49] There was only one perpetrator. But there are four semen donors: three on the bedsheet and one on the T-shirt. Which of those donors committed the crimes before the court?

[50] Just one thing distinguishes the sample on the T-shirt from those on the bedsheet. The sample on the T-shirt is the only one that has been linked to a known individual. It is the only one capable of grounding an arrest. That is obviously not a basis on which to conclude that it is the one connected to the crime.

[51] At the time of the initial investigation, the bedsheet was thought to contain the most likely source of biological evidence. The offence was committed atop the bedsheet and it appeared as if there was staining. The victim initially told investigators that she was forced to swallow the semen. Later, at trial, she testified that she spit out some of the semen in order to generate evidence. Ultimately, she acknowledged that, while she spit some semen out, she could not say whether it landed on the T-shirt or the bed.

[52] We know, from the blood typing and subsequent DNA analysis, that the accused could not have deposited the samples on the bedsheet. If one of those samples is the crime scene sample, the accused is not guilty of the crime. The Crown has failed to rule out that possibility.

The provenance of the T-shirt is unknown.

[53] One can add to the mix the uncertainties surrounding the T-shirt. We know that, in 2015, the T-shirt was found in a box of exhibits said to be linked to this case. We know that the T-shirt contains a sample of the accused’s semen. Beyond that, we know very little. The link between the T-shirt and the crimes is rooted in assumptions rather than evidence. Investigators assumed that the T-shirt containing the accused’s semen was worn by the victim at the time of the offences. However, there is little, if any, evidence to support this proposition.

[54] Officers who attended at the scene did not recall what the victim was wearing. ST was taken to the sexual assault centre and her clothing was seized by the person who performed the rape kit. That person did not testify. Officer Everingham testified that a paper bag, said to contain the victim’s clothing, was given to her by the person who performed the rape kit. She accepted the bag without opening it. She passed it on to the exhibits officer Alan Brown. Officer Brown has no memory of opening the bag, or of seeing a T-shirt or any other clothing purportedly worn by the victim. He had no note of what was in the paper bag. He would have recorded the contents of the bag on the evidence control sheet, a document on which he recorded all items seized. That is the document that is now missing. No officer who investigated in the 1990s can attest to seeing or seizing a T-shirt.

[55] No other steps have been taken to link the T-shirt to the crime. The victim could not recall what she was wearing the night of the attack. She testified that she often slept in a T-shirt and pants or shorts. No one showed her the T-shirt that was found in the box in 2015. She was never asked to identify whether it was hers. No one tested the samples on the bedsheet or the T-shirt for the presence of the victim’s DNA. The T-shirt contained four samples of amylase, one of which was adjacent to the semen sample. Amylase can be the product of saliva, perspiration, or vaginal secretions. If the amylase was that of the victim, one could infer that she wore the T-shirt on at least one occasion. The co-existence of her DNA and that of the accused on the same item of clothing would circumstantially strengthen the Crown’s case. However, the amylase was never tested and it is not known whether it belongs to the victim or someone else. The bedsheet samples were not tested for the presence of amylase.

[56] The most that can be said is that the T-shirt was found in the exhibits box in 2015. This is far from conclusive given the gaps in continuity of the box and its contents. There was little evidence to indicate the steps taken to maintain continuity during the move to a new headquarters building. Constable Hodgins testified that when he obtained the exhibits in 2015, they were housed in a single box, albeit in separate sealed containers. Officer Brown testified that he would not have packaged the items in that fashion, leaving open the possibility someone might have repacked the box after his dealings with it. Officer Brown also testified that he would not necessarily have known if anyone else signed out exhibits. No evidence was called to rule out that possibility. Finally, the disappearance of the evidence control sheet made it impossible to track exhibits from the time of seizure to their placement in the box.

Identifying the Correct Question

[57] The accused has not offered a viable explanation for how his semen ended up on the T-shirt. However, to require such an explanation from the accused would, in this case, be to reverse the onus of proof.

[58] If the Crown had led evidence linking the T-shirt to the crime, the presence of the accused’s semen would be cogent evidence of identity. It would, absent an explanation, be highly incriminating (though not perhaps conclusive, given the semen samples on the bed sheet). Confronted with this evidence, the accused would face a tactical burden to raise a reasonable doubt. It might fall to the defence to posit an alternate explanation, other than guilt, for the presence of his semen. It would not be enough to offer a purely speculative theory. A reasonable doubt is not a speculative doubt. The Crown need not negative possibilities based on mere conjecture. A reasonable doubt is one that reasonably arises on the evidence or lack of evidence.

[59] We do not get to that stage in this case, because the Crown has failed to link the T-shirt to the crime. If the T-shirt is not linked to the crime, the DNA on the T-shirt cannot tell us who committed the crime. To ask the defence to explain the presence of the semen in these circumstances is to reverse the onus of proof: see R. v. Nayyar, 2017 BCCA 297, at paras. 19-22. It is to leap over a critical issue that must first be proved by the Crown. The evidence does not permit me to find, as a fact, that the T-shirt was ever worn by ST, let alone that it was worn by her at the time of the offence.

[60] As for how the T-shirt found its way into the box, there are any number of possibilities given the lack of continuity over the case exhibits and the T-shirt. I note that, at the time of the original investigation, police were actively investigating a number of sexual assaults that they believed to be connected. There is no value in speculation and I decline to do so. Absent a concrete link between the T-shirt and this case, questions of how the T-shirt got into the box, and where it came from, need not be answered by the defence or, for that matter, the court.

The photo identification

Photographic Lineup identification is entitled to no weight

[61] The Crown says that, to the extent that there are gaps in evidence surrounding the T-shirt, those gaps can be filled by the results of the photographic lineup. The Crown acknowledges that there were defects in the procedure but argues that the selection of the accused’s photograph is worthy of some weight and is capable of supporting an inference of guilt.

[62] I cannot agree. It would be dangerous to attach any weight to the photographic lineup in this case.

[63] We have learned a lot about identification procedures since 1990. It is now beyond controversy that defective procedures can lead to misidentification. This is a function of the frailties of eyewitness identification, and the psychological effects of different presentation methods. The protocols of today are designed to minimize the risk of error. Photographs are to be presented sequentially, to avoid relative judgments. The witness is to be told that the perpetrator’s photo may not be in the lineup. The lineup should be administered by an officer not involved in the investigation. These protocols were not in place in the 1990s and were not followed in this case.

[64] Of greatest concern is the fact that the accused’s photograph is different from the others in the array. In a proper array, the suspect’s photo does not stand out as being different from the others. This is a matter of common sense. If the photograph of the suspect is distinctive in some obvious way, it may be selected for that reason. [^1]

[65] Here, the accused’s photograph leaps off the page, as if it is highlighted. It draws the eye. It has a different coloured background. It presents the accused from a different perspective. He is looking toward the camera while the others are looking to the side. His face is much larger than those depicted in the other photographs. While the other photos are clearly post arrest “mugshots” to use the vernacular, the accused’s photograph looks like it was taken in a different context. It has an almost glamorous appearance, as if a portrait or a photograph taken for a high school yearbook. It is difficult to verbally capture the impact of these differences. They are best understood by viewing the array.

[66] The officer who compiled the lineup thought that the photograph of the accused, like the others, was pulled from the filing cabinet in the forensic identification unit. He was …“pretty sure that’s what we did”. He believed that the photograph had been taken of accused in July 1990, though there was a subsequent arrest in November of that year. I was somewhat surprised to hear this evidence given the appearance of the photograph. It does not look like a typical post arrest photograph. Be that as it may, wherever the photograph came from, it was different in appearance than the others.

[67] The problem is exacerbated when one considers what the victim said when she selected the accused’s photograph. When ST saw the accused’s photograph, she told the officer that the accused looked like the man in her room because he was “good looking”. She explained that what she meant by that is that he did not look like a criminal. She remembered thinking this when she saw the intruder in her room.

[68] This distinctive feature mentioned by the victim was the very feature that distinguished the accused’s photograph from the others in the array. His was “good looking” in the sense described by the victim. His was the only photograph that does not resemble a typical “mugshot”. While the victim testified that she believed that they were all mug shots, she might well have been influenced by the distinctive appearance of the accused’s photograph and that the fact that, of the 12, he was the one who looked least like someone who had just been arrested.

[69] Finally, other factors detract from the probity of the identification. The victim had only very limited opportunity to see her attacker. The lineup was administered in February 1991, some five months after the event. While the victim testified in cross examination that she recognized the accused’s face, it is also evident that she based her identification on a physical reaction to the photograph and an element of intuition. She “had the feeling” that she had seen him in her room. At trial she spoke about relying on her intuition. I have no doubt that ST was doing her best to honestly and accurately identify one of the photographs. The accused’s photograph caused her to react and she therefore believed that he could be the person from her room. All of these factors converge to suggest that the identification of the photograph might have been based on something other than a recognition of the attacker’s facial features.

[70] Is it appropriate to assign any weight to the photo identification? Can it properly corroborate the DNA test results? I think not. Identification evidence has a binary quality. It is either correct or it is not correct. Either the right person is identified, or the wrong person is identified. If the wrong person is identified, the identification cannot be just a little bit incorrect. It cannot be moderately incorrect. It must, by necessity, be one hundred percent incorrect. If there is a meaningful risk of false identification, the evidence should be surgically excised from the factual matrix. Unreliable evidence does not advance the search for truth. Unreliable evidence leads to unreliable verdicts.

The Duty to Prevent a Wrongful Conviction

[71] The trial judge occupies a special role in the trial process. She is the gatekeeper, responsible for safeguarding the fairness of trial and the integrity of the fact-finding process. In some cases, as here, the trial judge is also the ultimate fact finder. Both roles require a conscious advertence to the risk of wrongful conviction. This is not a hypothetical risk. It is one that, sadly, has manifested in far too many cases in Canada and other countries. Trial judges must be ever vigilant to prevent the occurrence of a miscarriage of justice.

[72] The Supreme Court of Canada has, in various cases, endorsed the need to take steps that will prevent wrongful convictions. As it was put in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 8:

Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur.

[73] As noted in Hart, unreliable evidence has been identified as a contributing cause of wrongful convictions. Such evidence may take the form of a sincere but mistaken eyewitness; invalid science offered by a seemingly impressive expert; evidence offered by jailhouse informants and accomplices; and confessions elicited through dubious police methods. Sometimes, the surface appeal of the evidence will conceal its shortcomings. An expert’s credentials may distract from defective methodology. A confession, however obtained, may generate the myth that a person would never admit to a crime they didn’t commit. An identification from a sincere but mistaken witness, may be stated with an inflated level of confidence. Forensic DNA evidence, peppered with numbers in the trillions and quadrillions, may artificially increase the value of a piece of circumstantial evidence.

[74] Rejection of unreliable evidence is one way that courts can protect the integrity of the process and guard against miscarriages of justice.

[75] Reliability is the key concern in this case. The Crown’s case consists of two items: the DNA identification evidence and the photographic identification. The Crown argues that the combined effect of this evidence – and the improbability of coincidence – amounts to proof beyond a reasonable doubt. As he put it in his written submissions:

What would be the coincidence of [ST] having identified the accused at the same time his semen was found on her t-shirt. (respectfully the probability of such would be astronomical).

[76] The difficulty with this rhetorical question is that both items of evidence are lacking in reliability. The photographic lineup is fatally flawed. The DNA results, while scientifically valid, are not reliably linked to the offences in this case. Both items of evidence point in the same direction, but there is reason to believe that it may be the wrong direction.

[77] Logically, one piece of unreliable evidence cannot lend cogency to another piece of unreliable evidence. To hold otherwise would be to allow the most dangerous form of bootstrapping. Where evidence is of some probative value, it can combine with other evidence of probative value and cumulatively amount to proof. When the evidence has been determined to be unreliable (as is the photo lineup) or irrelevant (as is the accused’s semen on a T-shirt not shown to be connected to the crime), there is no utility in combining it. If evidence is unreliable or irrelevant it is of no probative value. Zero plus zero equals zero. In the worst case scenario, the equation might yield something other than zero. It might prompt an erroneous conviction.

[78] The case before the court is one that calls for heightened vigilance. It is only when one digs beneath the surface that the gaps in the Crown’s case are exposed. It is only through a rigorous application of the burden of proof that the proper questions are identified.

[79] These issues were skillfully identified and argued by counsel for the accused. I agree with him that the Crown has failed to prove, beyond a reasonable doubt, that it was the accused who broke into the victim’s home and assaulted her all those years ago. Guilt is not the only reasonable inference available on the evidence. There is a reasonable likelihood of misidentification, given the defects in the photographic line-up and the mysteries surrounding the T-shirt. One can only get to an inference of guilt by “filling in the blanks” or “jumping to conclusions”, both impermissible steps in the deliberation process: see R. v. Villaroman, 2016 SCC 3, [2016] 1 S.C.R. 1000, at para. 30.

[80] I expect that this decision will be a disappointment to ST. I have no doubt that the crimes occurred as she described them. The offences violated her bodily integrity, as well as the sanctity and security of her home. I expect that she might have been hoping for some degree of closure. I cannot provide that to her in the form of a finding of guilt. What I can do, and indeed, must do, is ensure that the tragedy of the crime is not compounded by the further tragedy of an unsafe conviction.

[81] For all of these reasons, I find the accused, John Wuschenny, not guilty on all counts on the indictment.

Released orally and in writing: November 14, 2018

[^1]: The Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group published a Report on the Prevention of Miscarriages of Justice in September 2004. The report recommends at p. ii, that “c) The suspect should not stand out in the lineup or photospread as being different from the others, based on the eyewitness’ previous description of the perpetrator, or based on other factors that would draw extra attention to the suspect.” The report also refers to the importance of the sequential presentation of the photographs to prevent ‘relative judgments’.