COURT FILE NO.: 39/17
DATE: 2018-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MATTHEW HUDSON
Harutyun Apel, for the Crown
Wayne Cusack, for Mr. Hudson
HEARD: October 23, 24, 25, 30, 31 & November 3, 2017.
REASONS FOR JUDGMENT
gray J.
[1] Mr. Hudson is charged with committing an aggravated assault on Vanessa La Selva, by wounding.
Background
[2] Late in the evening of September 1, 2015, and carrying over into the early hours of September 2, 2015, parties were under way at neighbouring properties on Hixon Street in Oakville. One property was at 2320 Hixon Street, and the other was next door, at 2316 Hixon Street. There is a low fence in between.
[3] Vanessa La Selva was 21 years old at the time, and on the evening of September 1, 2015, she was at the party at 2320 Hixon Street, which is the property occupied by her mother, Pamela.
[4] The party was taking place beside the house. There was a table and some chairs. There were a number of different people, including her mother, her sister, and a couple of others. I am satisfied that there was some consumption of alcohol that took place.
[5] At approximately 4:30 a.m. on September 2, 2015, Ms. La Selva attended at the party that was taking place next door, at 2316 Hixon Street. That party was also taking place outdoors, and there was a table and chairs there. There were a number of people present, including the accused, Matthew Hudson, Mike Belza, and Leslie Waines.
[6] Ms. La Selva testified that she did not know Mr. Hudson before she attended at the party. She said she walked over to the party, pulled up a chair and sat down, next to Mr. Hudson. Mr. Hudson was to her right, and a person named Jordan was to her left.
[7] Ms. La Selva testified that during the party she felt she got along fine with Mr. Hudson. She testified that Mr. Hudson would touch her arm, after which she would move away because she felt uncomfortable.
[8] Ms. La Selva testified that at one point she went to the washroom. When she came back out, the next thing she knew she was on her back on the ground and was looking up at her mother, Pamela Hare, who had pushed Mr. Hudson up against the fence.
[9] Ms. La Selva testified that she had been drinking, as well as all of the rest of the participants. She did not know whether Mr. Hudson was intoxicated.
[10] After she found herself on the ground, she stood up, and discovered that her neck was cut. There was blood on her hand. People gathered paper towels, and placed them on the wound. She was taken to the hospital where 10 or 12 stitches were placed. She now has a scar on the right side of her neck, which is one or two inches in length.
[11] Ms. La Selva testified that she did not see, or recall seeing, any weapons.
[12] On cross-examination, Ms. La Selva testified that she did not know how much she had had to drink. She said she does not drink liquor very often. Usually, when she drinks, she consumes wine. That evening, she had a small bottle of gin, which she shared with Mr. Hudson.
[13] She testified that she believes she had about 4oz to drink at the first party, and she did not know whether it was possible she had had more. She did not know how much her mother had had to drink.
[14] Ms. La Selva did not know at what time the incident occurred, but believed it was about one half hour after she arrived.
[15] Ms. La Selva testified that she knows Mike Belza. He is a neighbour and they socialized one or twice, but she did not spend much time with him.
[16] Ms. La Selva testified that she had been introduced to Jordan, who lived in the other building. She had not met the others.
[17] Ms. La Selva testified that before the incident, everything seemed fine. There were no threats.
[18] Ms. La Selva testified that during the party Mr. Hudson had been touching her right arm. She would shift away when he did so. She did not recall saying anything to Mr. Hudson about it.
[19] Ms. La Selva testified that when she went to the washroom, it was in the building occupied by herself and her mother. She said she spoke to her mother inside the apartment. When she returned to the party, she did not know whether all of the rest of the people were still there. She went to the same chair she had occupied before. She did not recall any interaction with anyone, and did not recall any argument or fight.
[20] She testified that the next thing she recalled was being on her back on the ground, and seeing her mother holding Mr. Hudson against the fence. She did not see anyone injure her and did not see any weapon. She assumed that Mr. Hudson had done harm to her because her mother was holding him against the fence and yelling at him. When she discovered that her neck was bleeding, she yelled “You tried to kill me, why? – we were cool.” She said that because she believed that Mr. Hudson had done it.
[21] Ms. La Selva testified that she thought she was getting along fine with Mr. Hudson, but she felt uncomfortable when Mr. Hudson touched her.
[22] Mike Belza testified. He said that on September 2, 2015, he was in attendance at the party at 2316 Hixon Street. He recalled that in addition to himself, the people there included Vanessa La Selva, Leslie Waines, Matthew Hudson, and Jordan. He was acquainted with Leslie, and he met Matthew Hudson that evening. Vanessa was Pam’s daughter, and he barely knew her. He knows Pam Hare.
[23] Mr. Belza testified that he had been drinking and he was intoxicated. He said Vanessa and Matthew Hudson “kinda flirted”.
[24] Mr. Belza testified that he was sitting beside Leslie Waines. Mr. Hudson was to his left, and Vanessa La Selva was beside Mr. Hudson.
[25] At some point, Mr. Belza said he turned around and saw Mr. Hudson and Ms. La Selva on the ground. Mr. Hudson was beside Vanessa, and was grabbing her by her waist and at her hair area. He could not see anything in Mr. Hudson’s hand. Vanessa said “Why are you doing me like this?” Mr. Hudson had his hand around Vanessa’s throat and was pulling her hair back.
[26] Mr. Belza testified that he tried to push Mr. Hudson and Ms. La Selva apart, and he was assisted by Leslie Waines.
[27] Mr. Belza testified that Pamela Hare rushed from the back door of her building and ran to the party, where she grabbed Mr. Hudson and pushed him up against the fence.
[28] Mr. Belza testified that there was blood on Ms. La Selva, and there was a cut on her neck. He gave her some paper towels.
[29] Mr. Belza testified that he noticed that Leslie Waines had cuts on her hand.
[30] On cross-examination, Mr. Belza testified that he lived in the same building as Pamela Hare. He would give her help when needed. He said that Vanessa La Selva was there on and off, and he only saw her sometimes. There was no ill will between them, and they did not socialize.
[31] Mr. Belza confirmed that he had a criminal record.
[32] Mr. Belza testified that he has a poor recollection of events. That evening, he was overwhelmed and intoxicated. His liquor bottle (40oz) was empty when the incident occurred.
[33] Mr. Belza acknowledged that some parts of the statement he gave to the police were inaccurate. He said he was intoxicated when he wrote the statement, and some parts may have been missing. He acknowledged that he did not see Mr. Hudson lunge at Ms. La Selva. When he turned his head, the two of them were already on the ground.
[34] Mr. Belza testified that he had not seen anything beforehand that suggested there might be violence.
[35] Mr. Belza testified that he had some interest in Leslie Waines, and he was in discussion with her when the incident occurred.
[36] When the incident occurred, he thought Mr. Hudson and Ms. La Selva had fallen, and were fooling around. When he heard Mr. Hudson and saw his hands on Ms. La Selva’s throat, he thought there was an attack.
[37] Mr. Belza testified that Leslie Waines tried to pull them apart. He never saw a knife. He tried to use his hands to push them apart. He saw Mr. Hudson’s hands on Ms. La Selva’s hair, and his other hand around her midsection. He was holding Ms. La Selva’s hair.
[38] Mr. Belza testified that he saw blood on Ms. La Selva’s neck, but he did not see blood until she was standing up.
[39] Mr. Belza testified that he did not recall Mr. Hudson saying “What did I do?”
[40] Pamela Hare testified. She acknowledged that there was a party outside her building in the early hours of September 2, 2015. She said her daughter Vanessa went next door to another party at about 3:30 or 3:45 a.m.
[41] Ms. Hare testified that she had had two drinks during the entire evening. She said Vanessa had been drinking rum and coke, but she was fine.
[42] Ms. Hare testified that after Vanessa had been at the other party for about one-half hour, she came back into her house to go to the washroom and get some cigarettes. She said everything was fine.
[43] Ms. Hare testified that at some point she heard Vanessa scream. She looked out her window and saw Mr. Hudson on top of Vanessa. Vanessa was on her back.
[44] Ms. Hare testified that she opened her patio door and ran to the fence between the two properties. She hopped the fence and fell. Her focus was to get Mr. Hudson off her daughter.
[45] Ms. Hare testified that she pulled Mr. Hudson off her daughter. She grabbed him by the hoodie and pulled him up. She lost her balance, got up, and pushed Mr. Hudson against the fence.
[46] Ms. Hare testified that Vanessa said “Why did you do this? – we were just chilling.” She also said “Why did you pull my hair?”, and “He shanked me.”, and “I’m bleeding.” When Vanessa took her hand away from her neck there was blood.
[47] Ms. Hare testified that she did not recall Mr. Hudson saying anything, and she did not recall seeing a knife.
[48] Ms. Hare testified that she gave a statement to police, and she made one correction to it. Originally she said that Mr. Hudson and Vanessa were pushing each other at the fence. She did not actually see that.
[49] Ms. Hare testified that Leslie Waines’ hand was cut on all four fingers.
[50] On cross-examination, Ms. Hare testified that she did not beat Matthew Hudson with a broom handle, and did not see anyone else do it.
[51] After Mr. Hudson was taken away, she saw Leslie Waines. That was when she noticed that four of her fingers had been cut.
[52] Ms. Hare acknowledged that she was reluctant to give a statement to the police. After the police asked for a statement, she was at a table outside her building and she was in shock.
[53] Ms. Hare confirmed that Mr. Hudson was on top of her daughter, and she did not see his hands.
[54] Officer Brett Yates of the Halton Regional Police testified. He attended at the property at 5:29 a.m. on September 2, 2015. He searched for a weapon at the westerly wall of 2316 Hixon Street. He discovered a gray folding knife that was closed. There was blood and hair on the blade. He put it in an evidence bag and delivered it to Detective Briand.
[55] On cross-examination, Officer Yates testified that his search ended when he found the knife. He put gloves on when he started searching. In addition to the knife, he found three beer bottles and a bong. He opened and closed the knife.
[56] The knife was entered as an exhibit (Exhibit 9).
[57] Officer Jason Briand of the Halton Regional Police testified that at 7:11 a.m. on September 2, 2015, he received the knife from Officer Yates. He filled out a property tag and placed the knife into a police storage locker.
[58] Officer Laura McLellan of the Halton Regional Police testified that she obtained the knife, photographed and swabbed it and sent it to the Centre for Forensic Sciences.
[59] On cross-examination, Officer McLellan confirmed that the knife was received in a plastic bag. The knife was folded.
[60] Diana Polley testified. She is a forensic scientist with the Centre of Forensic Sciences, and has been so since January, 1999. It was agreed that she is qualified to give expert evidence in the areas of body fluid identification and/or DNA analysis and interpretation. She has an extensive educational background and extensive training and experience. There can be little doubt from her curriculum vitae that she is extraordinarily qualified. Wisely, counsel for Mr. Hudson did not challenge her qualifications.
[61] Ms. Polley prepared four reports (one of them was to correct a minor error), and she confirmed the accuracy of the reports.
[62] For the purposes of this case, it is not necessary to explore the technicalities of the DNA analysis, or explain the technicalities of the results. It is sufficient to say that blood was found on the blade of the knife and a DNA analysis was done of the blood taken from two locations on the blade. Furthermore, an analysis was done of DNA found on the handle of the knife.
[63] In essence, in the opinion of Ms. Polley the DNA analysis disclosed that the blood on the blade came from two major sources, namely, Vanessa La Selva and Leslie Waines, and the chances that the DNA could have come from someone else are miniscule. The DNA from the handle of the knife was obtained from one major source, namely, Matthew Hudson, and once again the chances that it came from someone else are miniscule.
[64] On cross-examination, Ms. Polley confirmed that she did not directly perform any of the DNA analysis. That was performed by technologists who report to her. She testified that a technologist takes the samples, and she provided direction as to how the analysis is to be done. She reviewed the analysis, and she testified that it was done to her satisfaction. She testified that she reviews and interprets the analyses done by the technologists.
[65] Ms. Polley testified that she had no information as to how the swabs from the knife were collected. That is done by the police. She cannot say how the material got onto an item, nor how long it had been there. She testified that many factors can affect degradation of DNA, not just the age of the sample. She acknowledged that the first sample taken was approximately 8 months after the incident, and there could have been degradation if there had been less than optimal storage conditions.
[66] She confirmed that with respect to the blade of the knife, there were at least three contributors, two of whom were females, Leslie Waines and Vanessa La Selva, and the third sample was not suitable for comparison purposes.
[67] With respect to the handle of the knife, there were at least two contributors of which one was a major contributor, Matthew Hudson. There was a minor contributor that was not suitable for comparison.
[68] Leslie Waines testified. She was 18 years of age in 2015, and she has known Matthew Hudson since they were in kindergarten.
[69] Ms. Waines was very reluctant to testify. She did not want to give evidence at the preliminary inquiry, and she did so only under subpoena. For the purpose of giving evidence at trial, she made it clear to the Crown and the police that she was unwilling to testify.
[70] In an email dated May 27, 2016, sent before the preliminary inquiry, Ms. Waines stated “I will not be going to court, as he’s a close family friend and I am not comfortable with being involved with putting him in jail. Sorry. Leslie Waines.”
[71] In emails dated October 17 and 18, 2017, sent shortly before the trial before me, Ms. Waines made it clear that she was unwilling to testify. On October 15, 2017, she provided a letter from a physician indicating that she was struggling with mental health issues and being in the courtroom was a significant stressor.
[72] Ms. Waines refused to attend pursuant to a subpoena for the trial, and counsel for the Crown indicated that he would be requesting that I issue an order that she attend, and be arrested if necessary.
[73] I was relieved of the obligation to issue such an order, because Ms. Waines eventually appeared and testified.
[74] Ms. Waines testified that she had been at the party on Hixon Street. She had been drinking along with the others at the party. She met Vanessa La Selva for the first time that evening.
[75] Ms. Waines testified that she had had a lot to drink, and she was intoxicated. She said everyone there was “really drunk.” Ms. Waines testified that Mr. Hudson was trying to flirt with Ms. La Selva. She testified that Ms. La Selva flicked cigarette ash on Mr. Hudson’s hair, at which point he “snapped.” She testified that Mr. Hudson was trying to hit on Ms. La Selva and she was being rude.
[76] Ms. Waines testified that when the incident happened, Ms. La Selva was on the ground and Mr. Hudson had a knife in his hand that was on Ms. La Selva’s neck. Ms. Waines testified that she grabbed the knife from Ms. La Selva’s throat. She grabbed it with her left hand and threw it at the wall. She said the knife was opened when she threw it.
[77] Ms. Waines testified that Ms. La Selva’s neck was bleeding and she was screaming.
[78] Ms. Waines testified that she went to the house to wash the blood off her. She said she had an injury to her left hand.
[79] Ms. Waines testified that she had to be physically taken to the police to give a statement. She did not want to be involved.
[80] On cross-examination, Ms. Waines acknowledged that she has difficulties with her memory. She had been in a car that had rolled a couple of years ago, and she could not remember what happened. She acknowledged that it was stressful when she gave evidence at the preliminary inquiry.
[81] Ms. Waines acknowledged that Mr. Hudson is a really close friend. She had seen a lot of him, and they shared a number of interests. They did a number of things together.
[82] Ms. Waines acknowledged that on September 1, 2015, she had met Mr. Hudson at a shopping mall in Oakville. It is where her aunt works. Her aunt lives on Hixon Street.
[83] She did not recall travelling with Mr. Hudson from there to her aunt’s apartment on Hixon Street. She did not see any weapon.
[84] Ms. Waines acknowledged that the bong that had been found by one of the police officers was her bong. She acknowledged that she had brought cannabis products to the party.
[85] Ms. Waines testified that she was fine enough to jump on Mr. Hudson and grab the knife. She was present when the assault took place.
[86] She acknowledged that she did not see what caused Ms. La Selva to fall on the ground, or which way she fell.
[87] When she was shown the knife (Exhibit 9), Ms. Waines testified that she did not recall seeing it. She said she saw a knife when she was right on top of Mr. Hudson and Ms. La Selva. She did not remember whether Mr. Hudson was beside or on top of Ms. La Selva.
[88] Ms. Waines testified that she grabbed the knife and threw it with her left hand. She held it by the blade. She is not left handed. She was not looking at where she threw it. She did not close the blade. She just grabbed it and threw it.
[89] Ms. Waines testified that she did not recall how Mr. Hudson was holding the knife. She could not say whether Exhibit 9 is the particular knife in question.
[90] Ms. Waines testified that after she had gone into the apartment to deal with her hand, she came back out and was sitting on the doorstep until someone took her to the police. She did not recall seeing Mr. Hudson being arrested.
[91] Ms. Waines testified that after the incident Mr. Hudson said “I don’t know what I did. What did I do?” This was when Pamela Hare was beating on him.
[92] Ms. Waines was specifically asked whether she recalled being given the knife by Mr. Hudson and being asked to hold onto it. She said she did not. She was asked if she had a knife collection. She said no.
[93] Matthew Hudson testified. He is 20 years of age and lives in Etobicoke with his father. He has no criminal record.
[94] Mr. Hudson testified that his father drove him to a shopping mall in Oakville on September 1, 2015. They arrived at the mall between 11:00 a.m. and noon. He met his aunt Cory who works at a hairdressing salon in the mall. She did his hair for him. While at the mall, Mr. Hudson testified that he met Leslie Waines. He testified that he knows her well, and has known her his entire life.
[95] Mr. Hudson testified that he went to the LCBO and purchased a bottle of liquor (26oz). He met Ms. Waines again at the mall, and they talked about going to his aunt’s apartment on Hixon Street where there would be drinking and smoking. They went there. It took about 40 minutes.
[96] Mr. Hudson testified that he went to his aunt’s apartment for which he had a key. He put his bag there, and took his bottle to the party. Leslie was by the fence when he came out of the apartment.
[97] Mr. Hudson testified that there was drinking and smoking pot. There were a couple of bottles on the table.
[98] Mr. Hudson testified that he left the party at some point, because he had received a phone call from the Peel Police. Mr. Hudson had threatened to post pictures of his girlfriend on Facebook. The police said that Mr. Hudson had to meet them to discuss this.
[99] Mr. Hudson testified that he left the party to go to the police. He met them down the street. He spoke to the police for about an hour to an hour and a half. He gave the police his phone in order that the pictures could be deleted. No charges were laid.
[100] Mr. Hudson testified that he had a knife with him that day, which he gave to Leslie Waines before he met the police.
[101] Mr. Hudson was shown Exhibit 9, the knife. He said it was similar to his knife but could not say if it was actually his.
[102] After returning to the party, there was more drinking. There was no smoking at that point. He assumed Leslie Waines still had the knife.
[103] Mr. Hudson testified that he left to get some beer and some bread for his aunt. He was gone about 40 or 50 minutes. After returning, he was there a fairly long time.
[104] Mr. Hudson testified that everyone was getting along. He said Ms. La Selva joined the party at some point, probably around 2:00 or 3:00 a.m. She sat down and was drinking and smoking along with the others.
[105] Mr. Hudson testified that he and Ms. La Selva were flirtatious. He touched her arm and said her eyes were beautiful. She touched his arm and was giggly. There was no objection to how he was behaving.
[106] At some point, Mr. Hudson put his arms out for Ms. La Selva to give him a hug. He put his arms around her, he blinked and they fell to the ground. His arms were underneath her and he was on top of her.
[107] Mr. Hudson testified that Mr. Belza pushed the two of them apart, and no one else did. He did not know where Leslie Waines was.
[108] Mr. Hudson testified that he was lying on his stomach, then on his back, and he was two or three feet from Ms. La Selva. He testified that Pamela Hare came to him, and grabbed him by the shoulder and pulled him up. She said “You hurt my daughter” and hit him with a stick. She pushed him against a fence. He said “What did I do?”
[109] Mr. Hudson testified that Leslie Waines had showed him a knife collection that she had. She said she was willing to hold the knife when he asked her to. He said he did not get the knife back from her.
[110] Mr. Hudson testified that the police arrived and he was placed on the ground, and then against a police car and then searched. He was taken to the station.
[111] Mr. Hudson testified that he had a cut on his neck. He did not know how it got there, but it was not there before the incident.
[112] Mr. Hudson testified that he did not cut Ms. La Selva with a knife, and does not know who did.
[113] He testified that his knife was in good condition when he had it.
[114] On cross-examination, Mr. Hudson acknowledged that he was not keeping tabs of who was drinking and smoking at the party. He said he felt slightly intoxicated but could control himself.
[115] Mr. Hudson testified that when he went to join the police he stored his alcohol at his aunt’s apartment. He did not leave the knife there, because a kid might find it.
[116] Mr. Hudson acknowledged that the knife (Exhibit 9) “might be” his.
[117] Mr. Hudson testified that he did not pull Ms. La Selva down. She simply wanted a hug. He did not have a knife at the time. He has no explanation as to how Ms. Waines was injured. He testified that he could think of no reason for Ms. Waines to slash Ms. La Selva, and he confirmed that Ms. La Selva and Mike Belza got along.
[118] Mr. Hudson testified that he did not need stitches for the cut on his neck, and did not know whether it bled.
[119] Mr. Hudson testified that he had no recollection of Ms. La Selva saying “Why do me that way?”
[120] Before leaving the factual matrix, I would note that Mr. Cusack requested that I examine the knife, Exhibit 9. I did so in the courtroom during the trial. The knife is of a type in which the blade folds into the handle. When I examined the knife, it was apparent that the locking mechanism, that is intended to hold the blade in place when it is extended, is defective. Accordingly, the blade will quite easily be folded out of and into the handle.
Submissions
[121] Mr. Cusack, counsel for Mr. Hudson submits that the Crown has not proven the case beyond a reasonable doubt.
[122] Mr. Cusack notes that Ms. La Selva was able to provide very little information about the incident itself. She provided virtually no details about what happened to her. She relied to a large extent on what others said to her.
[123] Mr. Cusack also noted that there were others in attendance at the gathering who were not called to testify by the Crown. It was submitted that I should draw an adverse inference as a result.
[124] Mr. Cusack notes that the evidence was clear that during the gathering, Mr. Hudson and Ms. La Selva appeared to get along well. There would not appear to have been any motive for an unprovoked attack.
[125] Mr. Cusack submits that it is of some significance that no one saw any weapon by which the injury to Ms. La Selva could have been inflicted, except Leslie Waines.
[126] Mr. Cusack submits that Leslie Waines’ evidence is unreliable. She was clearly intoxicated on the evening in question, and she was extremely reluctant to give evidence at all. It is also quite clear that she suffers from significant mental issues.
[127] In the final analysis, Mr. Cusack submits that the Crown has simply not proven the case beyond a reasonable doubt.
[128] Mr. Apel, counsel for the Crown, submits that the case has been proven beyond a reasonable doubt.
[129] Mr. Apel submits that Leslie Waines had no motive to fabricate her evidence. Indeed, she had known Mr. Hudson for her entire life, and they are on very good terms. She demonstrated no bias whatsoever during her testimony, and there was no embellishment. Her evidence was corroborated by a number of other witnesses, and also by the DNA evidence.
[130] Mr. Apel submits that the DNA evidence is compelling. Blood was found on the blade of the knife, and one of the major contributors was Ms. La Selva. Mr. Hudson’s DNA was found on the handle of the knife, and he was the major contributor.
[131] While Mr. Hudson was reluctant to admit that the knife, Exhibit 9, belonged to him, there can be little doubt on the evidence that it is indeed Mr. Hudson’s knife. It was found at the scene of the incident by a police officer, and in the circumstances, there can be little doubt that it was the instrument that caused the injury to Ms. La Selva.
[132] Mr. Apel submits that Mr. Hudson’s evidence should not be accepted. On any common sense view, his evidence is not credible.
[133] Ms. Waines denied having a collection of knives and she denied that the knife had been given to her by Mr. Hudson on the date of the incident. It is highly unlikely that Mr. Hudson would have given it to her for safekeeping while he went to talk to the police. It would have been a simple matter for him to have hidden the knife at his aunt’s apartment, and it is unreasonable to believe that he declined to do so simply because it might have been found by a child. There is no evidence that there was any child anywhere in the vicinity. It is also unreasonable to believe that he neglected to retrieve the knife from Ms. Waines once he returned to the party. His evidence that he never retrieved the knife from her is most difficult to believe.
[134] In the final analysis, Mr. Apel submits that the case has been proven beyond a reasonable doubt.
Analysis
[135] Section 268(1) of the Criminal Code provides as follows:
268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
[136] In this case, Mr. Hudson is alleged to have committed an aggravated assault on Vanessa La Selva by wounding her. There can be little doubt that if it were to be found that Mr. Hudson caused the injury to Ms. La Selva’s neck by cutting her with a knife, and did so without her consent, the offence has been made out. Accordingly, the issue before me is whether the Crown’s theory of the case has been proven beyond a reasonable doubt.
[137] Because Mr. Hudson gave evidence, I must apply the principles set out by Cory J. in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Those principles are:
a) If I believe the evidence of Mr. Hudson, I must acquit him;
b) Even if do not believe his evidence, but I am left in reasonable doubt by it, I must acquit him;
c) Even if Mr. Hudson’s evidence does not leave me in any doubt, I must consider whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of his guilt.
[138] The principles articulated in R v. W.(D.) are not applicable only where the accused testifies. They are also applicable wherever any evidence favourable to the accused is elicited: see R. v. D.(B.), 2011 ONCA 51, at para. 114.
[139] In my view, the only rational conclusion from the evidence as a whole is that the injury to Ms. La Selva was caused by Mr. Hudson through the use of the knife, Exhibit 9.
[140] There is no dispute, and indeed Mr. Hudson, acknowledges, that Mr. Hudson and Ms. La Selva were on the ground. There is also no dispute that Ms. La Selva’s neck was cut while she was on the ground with Mr. Hudson. The issue is whether the slashing of her neck was done by Mr. Hudson.
[141] In considering the evidence, I must bear in mind that many, if not most, of the witnesses had been drinking and/or smoking marijuana. In many cases, they were intoxicated. That is certainly true of Ms. Waines, one of the primary witnesses relied upon by the Crown. It was also the case with respect to Mr. Belza. It was likely the case with respect to Mr. Hudson, and was possibly the case with respect to Ms. La Selva.
[142] The only direct evidence that Mr. Hudson caused the injury was given by Ms. Waines. None of the other witnesses, even Ms. La Selva, were able to say how the injury occurred.
[143] As noted, Ms. Waines was intoxicated on the evening in question. Furthermore, she has certain mental issues that could cast doubt on the reliability of her evidence. If the Crown’s case depended solely on the evidence of Ms. Waines, I would have no hesitation in acquitting Mr. Hudson.
[144] However, Ms. Waines evidence does not stand alone. The DNA evidence is compelling, and provides significant corroboration of Ms. Waines’ evidence. Furthermore, the finding of the knife by the police officer, in the location in which it was found, provides significant corroborative evidence that she grabbed the knife and threw it away. The injury to her fingers of her left hand, as well as her DNA that was found on the blade, offer significant corroborative evidence that she grabbed the knife by the blade.
[145] Blood of Ms. La Selva and, as noted, blood of Ms. Waines were found on the blade. DNA of Mr. Hudson was found on the handle.
[146] There can be little doubt, in my view, that the knife, Exhibit 9, was the instrument that caused the injury to Ms. La Selva, and that the knife belonged to Mr. Hudson.
[147] Mr. Hudson’s evidence does not raise any reasonable doubt. His evidence is riddled with improbabilities. I do not accept his evidence that Ms. Waines had a collection of knives, or that he left the knife with her while he talked to the police. I find it highly improbable that he would have entrusted the knife to her rather than simply leaving it in his aunt’s apartment. Ms. Waines denied that she had a collection of knifes and that Mr. Hudson left the knife with her.
[148] While not determinative, Ms. Waines had no apparent motive to fabricate her testimony against Mr. Hudson. She had known him her entire life and she and Mr. Hudson were friends. She was very reluctant to give evidence against him, and indeed in an email prior to the preliminary inquiry she stated that she did not want to be responsible for Mr. Hudson being sent to jail.
[149] It would be difficult to ascribe a motive to Mr. Hudson for committing the assault. It is possible that he did so because he was rebuffed in advances that he made to Ms. La Selva, but that would be pure speculation. The presence or absence of a motive is not determinative, although it is a factor to consider.
[150] In the final analysis, based on the evidence as a whole, including that of Mr. Hudson, I conclude that the Crown has proven the case against him beyond a reasonable doubt. In the circumstances, the absence of an apparent motive is not germane to the result.
[151] Before closing, I should note an evidentiary ruling that I was required to make after the conclusion of the trial.
[152] As noted earlier, expert evidence was given by Diana Polley for the Centre of Forensic Sciences, who was qualified to give opinion evidence in connection with body fluid identification and/or DNA analysis and interpretation. She testified that she based her analysis, in part, on her interpretation of analyses that were done by technologists. She testified that those technologists followed standard operating procedures, quality controls, and quality assurance standards and provided written documentation of what they did. The technologists are proficiency tested twice a year, and they are interviewed in audits by external audit providers.
[153] Mr. Cusack did not object to Ms. Polley’s evidence as it was elicited. However, at the conclusion of the case, during argument, he raised the issue of whether her evidence was admissible because it was based, in large part, on tests and procedures conducted by technologists who were not called as witnesses.
[154] I invited the parties to file written submissions on the issue, and after considering their submissions I have determined that the evidence was admissible notwithstanding that the technologists were not called to give evidence.
[155] The issue raised by Mr. Cusack was dealt with by Watt J., as he then was, in R. v. Worrall (2004), 2004 CanLII 66306 (ON SC), 189 C.C.C. (3d) 79 (Ont. S.C.J.), which was a manslaughter case. In that case, the Crown called certain toxicologists and pathologists to give opinion evidence, but did not call technicians who had conducted various tests or analyses that produced the findings on which the toxicologists and pathologists relied to express their opinions. Watt J. held, at paras. 81-87, that the evidence of the experts was admissible, notwithstanding the failure of the Crown to call the technicians who provided the information and analyses upon which the opinion evidence was based. The case is practically on all fours with the case before me.
[156] Mr. Cusack, in his submissions, has made a valiant attempt to persuade me that Worrall was wrongly decided, or at least is distinguishable. Notwithstanding Mr. Cusack’s able submissions, I am not convinced that it was wrongly decided, nor is it distinguishable on any relevant basis. I will follow it. The challenged evidence is admissible.
Disposition
[157] For the foregoing reasons, I find Mr. Hudson guilty as charged.
Gray J.
Released: February 8, 2018
COURT FILE NO.: 39/17
DATE: 2018-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MATTHEW HUDSON
REASONS FOR JUDGMENT
Gray J.
Released: February 8, 2018