COURT FILE NO.: 1990/18
DATE: 20210111
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
William James Epp
Defendant
David Rows, for the Crown
Ken Golish, for the Respondent
HEARD: November 10, 12 & 13, 2020
PUBLICATION RESTRICTION NOTICE
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complainant may not be published, broadcasted or transmitted in any manner.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 this restriction so that it can be published.
desotti, j.
[1] The accused, William James Epp is charged between the 25^th^ day of July and the 26^th^ day of July 2017, both dates inclusive, at the Municipality of Brooke-Alvinston, did commit a sexual assault on M. T., contrary to Section 271 of the Criminal Code of Canada.
A. The Facts
[2] The facts are fairly straight forward. The accused did not testify. The complainant was born on March 27^th^, 2001 and was 16 years of age at the time of the alleged sexual assault. She resided in Inwood, Ontario with her father and step-mother in a single family residence.
[3] Living in the residence were her two younger sisters, a younger brother, James, an older step-brother Edward, his last name was M., and a step sister Jasmine.
[4] At the material time her father, step-mother and her younger brother James were in London, Ontario to do some cell research because her brother James had leukemia.
[5] Also, during the material time only the complainant, her step-brother Edward another step-sister Samantha, who periodically attended at this residence and identifies as a male and prefers to go by the name Shane, and Shane’s girlfriend S. were present. The other children were with their other biological parent.
[6] The accused, William Epp was a family friend of the complainant’s father and was known to the complainant for a significant period of time. She can only say she has known him since she was very young and that he frequently visited their home and that she viewed him as an uncle.
[7] The accused also resided in Inwood and lived about a block and a half a way.
[8] On the evening in question upon returning from the library, the complainant indicated to Shane (Sam) that she wanted to get drunk. Since there was no alcohol in the residence, she decided to go down the street to Mr. Epp’s residence to retrieve some alcohol.
[9] At his residence, she was given three beer by the accused, two ‘tall boy’ beers and one regular beer, but in the course of her time at the accused’s residence the accused poked her breast.
[10] Back at the complainant’s residence, she consumed a small part of the smaller can of beer while Shane had one tall boy and her step-brother Edward had the other tall boy beer.
[11] Because S. did not like beer, the complainant went back to the Epp residence to see if he had “a ‘fruity’ type of alcohol”. The accused indicated that he did not have anything but would go to a store to buy some other alcohol. The complainant also indicated that the accused placed his whole hand around her breast during this second visit.
[12] The complainant went back to her residence with the expectation that she would return in about 45 minutes back to the Epp residence to afford the accused an opportunity to buy more alcohol.
[13] When the complainant returned she received a strawberry type of wine ‘Girls Night Out’ and was made aware that the accused had a second bottle of wine as well and that he expected the complainant to return and share some of this second bottle of wine with him.
[14] At her residence the complainant indicated that she had two glasses of wine and then because the wine was consumed all three of the parties, that is Shane, S., and the complainant, M. T. went back to the accused’s residence to consume more wine. The complainant specifically indicated in cross-examination that she did not feel comfortable going back to the accused’s residence without Shane and S. because of what happened to her earlier.
[15] Back at the accused’s residence the complainant consumed more wine and had a sip of beer. The complainant indicated that she felt quite drunk as she had little to eat that night and while at the accused’s residence, she threw up twice in Epp’s washroom.
[16] All three women at the accused’s residence indicated that they were watching television and in particular the movie ‘Tarzan’.
[17] The complainant indicated that because she was warm, she remembers going outside and that she was petting a neighbour’s cat. She has no memory of returning back inside and she next remembers seeing her step-brother Edward at the door of the Epp residence, the accused’s bare hip, and nothing more.
[18] The evidence of her step-brother, Edward was that he attended the accused’s residence to fetch M. T. back to his residence after Shane and S. had returned to his residence without the complainant. When he walked into the living room without knocking on the door, he observed M. T. naked from the waist down lying on the couch and the accused also naked.
[19] The step-brother was asked to leave by the accused and did and returned to his residence without M. T.
[20] Shane and S. observed that when the complainant returned from the accused’s residence that her pants were on backwards and her underwear was inside out and sideways such that it was not on properly.
[21] The complainant indicated that when she awoke she was on the Epp couch and the entire house was dark. The complainant indicated that she felt groggy and nauseous and as she was heading back to her residence, she tripped down the stairs of the Epp residence and felt vaginal pain. The complainant indicated “it was burning and very very painful”.
[22] There was no evidence by the complainant that she got dressed or how she got dressed either in examination-in-chief or in cross-examination.
[23] The complainant has no explanation why she was experiencing this vaginal pain as she had no medical condition to account for such a pain.
[24] Upon returning home, the complainant again tripped on her residence stairs and again experienced intense pain in her vaginal area. The complainant continued to scream in pain, and that is when S. called an ambulance who brought the complainant, in the first instance, to Victoria Hospital in Petrolia, and then eventually to Bluewater Health Hospital.
[25] It should be noted that the accused had indicated to both S. and Shane that M. T. could sleep it off at the accused’s residence and both women believed that they were being ‘shooed’ out of the accused’s residence.
[26] The complainant indicated that at no time did she give consent to any sexual activity verbally or non-verbally.
[27] Shane also produced a text that was addressed to the accused as follows:
Hey sorry to day (probably should read “say”) this but did you touch my sister by any chance Did*
Not a fucking chance what the fuck is that about I heard the door close about 10 or 15 minutes ago when she left I kicked your brother out he came w
Alking in when I was gathering up stuff
What the fuck are you talking about
[28] While at the hospital, a nurse administered a sexual assault examination kit. This kit was eventually turned over to the investigating officer, Sergeant Anderson who delivered it personally to Centre of Forensic Science.
[29] Pursuant to a s. 276 application by the Crown, the complainant was asked by the Crown if she had any sexual activity with any other persons as a there were three DNA profiles identified from the swabs provided in the course of the sexual assault examination. The complainant was one profile, the accused was another profile and there was a third party unidentified profile.
[30] While I allowed this inquiry, I made it clear to the Crown, that I did not consider any answers as significantly probative as the issue before me was simply whether the accused had sexually assaulted the complainant, absent her consent. Explaining the third DNA profile, while interesting, was unnecessary in determining the matter before the court.
[31] Mr. Roger Frappier testified from the Centre of Forensic Science concerning his report dated August 28^th^, 2017. This report has a file no. 2017-011528, request no. 0002, an incident no. LP17215820 and identifies the complainant, M. T. and the accused William Epp and indicates that the report is produced for the Lambton OPP.
[32] Additionally, this report specifically indicates concerning the heading ‘Continuity’ that “attached to this report relates the laboratory item number to the submitter item number and description”.
[33] Also, under the heading “Item Receipt” there is a reference to the “CFS submission receipt” previously provided to the submitter for information regarding item receipt and acceptance. Also, under this heading is an indication that all item transfers occurring within the CFS are recorded in the Laboratory Information Management System (LIMS), A full continuity report from this system is available on request.
[34] Most significantly, under the heading ‘Notes/Remarks, the author indicates “To obtain information about sample availability for re-testing or additional testing, clarification, or a copy of the documentation underlying this report, please contact the writer of this report”.
[35] In completing his analysis, Mr. Frappier determined that a vaginal swab did not have sufficient male DNA for comparison analysis but that a rectal and external genital swab had sufficient male DNA for analysis and was suitable for comparable purposes (see Exhibit # 3). Mr. Frappier specifically indicated that there were spermatozoa present in all three swabs but that there was insufficient DNA present in the vaginal swab for appropriate analysis.
[36] Furthermore, Mr. Frappier indicated that the DNA sample of the complainant M. T. was determined from a buccal sample provided at the same time as the sexual assault examination at Bluewater hospital.
[37] Additionally, Mr. Frappier indicated that a comparison of the male DNA occurred once a sample was obtained from the accused, William Epp and presented to C. F. S.
[38] On October 16, 2017, Mr. Frappier prepared and forwarded a further report having now received a DNA sample from the accused, William Epp. Again, the same CFS file number is used, together with the same incident number, and the two named parties namely M.T and the accused, William Epp.
[39] In both the analysis of the genital swab and the rectal swab, the accused William Epp could not be excused. The estimates of the vaginal sample would indicate that it was 110 trillion times more likely if it originates from M. T., William Epp and one unknown individual than if it originates from M. T. and two unknown individuals unrelated to William Epp. The rectal swab was also similar, although this time the likelihood was 120 trillion times more likely if it originates from M. T., William Epp and one unknown individual than if it originates from M. T. and two unknown individuals unrelated to William Epp.
[40] The same ‘Continuity’ heading, ‘Item’ heading and ‘Notes/Remarks heading was also included in this report.
B. Analysis
[41] There are three outstanding issues after the hearing of the evidence at this trial:
Is there any issue with respect to the continuity of the samples taken from the sexual assault kit and the DNA sample provided by the accused?
Is there any issue that the complainant consented to any sexual activity?
Was there a sexual assault?
First Issue: Is There Any Question of Continuity of the Exhibits
[42] I indicated to counsel for the accused that I was totally satisfied beyond a reasonable doubt that the continuity of both the complainants DNA and that of the accused from the sexual assault kit (and an unidentified third party profile), and the subsequent obtaining of the accused’s DNA by the investigating officer and his forwarding of same to C.F.S., and that the two reports filed by Roger Frappier on behalf of C. F. S. in August and October accurately set forth true, accurate, and significant results.
[43] Both samples were received by C.F.S. and identified and were processed with similar identification numbers, incidents and the names of the parties involved, the complainant, M. T. and the accused. William Epp.
[44] If there had been any question about continuity of the exhibits provided, their challenge could have been the subject of either a voir dire brought by counsel for the accused or further inquiry could have been made with the author of the report or with questions posed about the process involved as reflected in the reports themselves.
[45] In short, I reject this submission.
Second Issue: Was There Consent to Any Sexual Activity
[46] Four parties testified about both the state of sobriety of the complainant and made certain observations about the complainant through their testimony at the trial.
[47] The complainant herself indicated that after falling asleep or passing out at the accused’s residence she tripped on the accused residence’s step and experienced severe pain in her vagina. She tripped a second time when she entered her own residence and again experienced severe pain in her vagina area.
[48] She needed help from her step-sister Shane and Shane’s girlfriend S. to get to her bedroom as she was stumbling and “waddling like a penguin”. All three females observed that her pants were on backward and her underwear was inside out and somehow sideways.
[49] She was crying out with such pain that S. eventually called for an ambulance. Additionally, Shane texted the accused and questioned whether he had touched her step-sister.
[50] All three females testified that M. T. had thrown up at the Epp residence. Although Shane and S. believed that M. T. was passed out on the couch both thought that she could also have been feigning her level of intoxication or at the very least just wanted to sleep off the effects of her intoxication.
[51] On one occasion while Shane went to the bathroom S. observed the accused’s hand close to M. T. and heard a waist band snap.
[52] S. thought that the accused had placed a blanket on M. T. just as they were leaving. S. also observed M. T. stumble at the Epp residence. Shane believed that the accused was ‘shooing’ S. and herself to get out of the house.
[53] Both S. and Shane were not comfortable leaving M. T. at the Epp residence and asked that Edward go to the Epp residence to bring back M. T.
[54] Edward walked into the Epp residence without knocking and observed M. T. naked from the waist down while lying on the couch and observed that the accused was totally naked. Edward also indicated that he was asked to leave the residence, that the accused ‘shooed him out the door’ saying “it’s time to go”.
[55] Edward also indicated that while he was ‘shooing him out the door’, he grabbed his desert camo, cargo shorts to cover his privates.
[56] Edward also indicated that he believed that M. T. was drunk the second time she went to the Epp residence based on the way she was talking and the way she was acting (I would note that I pointed out to this witness that there must have been three trips to the Epp residence because clearly he remembers them subsequently drinking wine at his father’s residence, which would have occurred after her third trip to the Epp residence). Edward also observed her stumble when she came home on the last occasion.
[57] I find that the complainant was highly intoxicated and thus was unable to provide any consent to any sexual activity. Furthermore, there is no evidence that she tacitly consented or by manner or conduct consented to any sexual activity. Certainly, there was no evidence that there was any actual sexual activity except by virtue of circumstantial evidence provided by the complainant and other witnesses at the trial.
Third Issue: Was There a Sexual Assault
[58] The following uncontradicted evidence was introduced during the course of this trial:
The complainant was quite drunk and was either passed out on the accused’s couch or was at the least sleeping off the effects of her intoxication;
On two occasions previously, the accused had poked her breast and grabbed her breast;
M. T. indicated that the accused had invited her back to his residence to share in the second bottle of wine;
S. observed the hand of the accused close to the complainant and heard what she thought was a waist band snapping;
Edward saw the complainant, M. T. lying on the couch naked from her waist down and as well observed the accused naked sitting at the end of the couch;
The complainant’s pants were on backwards when she returned home, and her panties were inside out and not on properly;
The complainant, M. T. experienced excruciating pain in her vagina when she tripped on the stairs at the Epp residence and as well when she tripped on the stairs at her residence. The complainant was also screaming out in pain at her residence such that her stepsister’s girlfriend called for an ambulance;
Spermatozoa were found in swabs taken from the complainant’s vagina and rectum. The DNA analysis revealed that the accused, William Epp and one other individual could not be excluded from these samples and that the likelihood of these samples originating from two other individuals matching these profiles was 110 and 120 trillion;
Although there were spermatozoa found in the vagina cavity it was insufficient for analysis.
[59] There are some obvious and clear inferences that can be drawn from the evidence.
[60] The fact that the complainant was naked from her waist down, intoxicated and probably passed out from the excessive consumption of alcohol, and the accused was also naked and the finding of the accused DNA (spermatozoa) on the vagina and rectum of the complainant, indicates some sexual activity occasion by the accused.
[61] The extreme pain experienced by the complainant in her vagina and the absence of any medical condition strongly indicates that either the accused inserted his penis into the complainant’s vagina or put some other object inside her vagina.
[62] Mr. Frappier of the C. F. S. indicated that there would have to be some form of the “delivery of semen” to these locations on the complainant’s body. One can conjecture either the accused inserted his penis into the complainant’s vagina with the subsequent ejaculation outside of the complainant’s vagina or perhaps masturbation and the insertion of some object or the accused’s hand inside the complainant’s vagina.
[63] In either instance, what exactly was the manner or delivery of the sexual assault or the means of the sexual assault is less significant than whether a sexual assault was occasioned on the complainant.
[64] I conclude beyond any reasonable doubt that a sexual assault took place and there will be a finding of guilt on count # 1.
The Honourable Mr. Justice John A. Desotti
Released: January 11, 2021
COURT FILE NO.: 1990/18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
William James Epp
REASONS FOR JUDGMENT
Desotti, J.
SCJ
Released: January 11, 2021