COURT FILE NO.: CR 20-10000157 CR-20-10000158 CR 23-10000372 DATE: 20230711

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHANE CODRINGTON

Counsel: J. Witkin and R. Verboom, for the Crown P. Brown, for Mr. Codrington

Heard: 29 May 2023 – 8 June 2023

S.A.Q. AKHTAR J.

OVERVIEW OF THE CASE

The Indictment

[1] Mr. Codrington stands charged with the following offences:

1. That he used an imitation firearm when robbing, the complainant, hereinafter referred to as C contrary to s. 85(2) of the Criminal Code
2. That he used an imitation firearm in committing a sexual assault on C contrary to s. 85(2) of the Criminal Code
3. That he robbed C contrary to s. 344 of the Criminal Code
4. That he unlawfully confined C contrary to s. 279(2) of the Criminal Code
5. That he used a weapon when sexually assaulting C in the elevator at 111 Bathurst Street contrary to s. 272(1) of the Criminal Code
6. That he used a weapon when sexually assaulting C in the stairwell of 111 Bathurst Street contrary to s. 272(1)(d) of the Criminal Code.
7. That he committed the sexual assault in the elevator with Jevor Brown contrary to s. 272(1) of the Criminal Code
8. That he committed the sexual assault in the stairwell with Jevor Brown contrary to s. 272(1)(d) of the Criminal Code.

[2] All of the offences are alleged to have occurred on or about 10 July 2019.

THE BACKGROUND FACTS

C’s Evidence

[3] The complainant in this case, hereinafter referred to as C, is now 23 years old and lives in Montréal. She is originally from Tunisia and her first language is French.

[4] On 10 July 2019, she came to Toronto with two male friends, hereinafter referred to as D and G, and D’s girlfriend hereinafter referred to as A.

[5] They rented an Airbnb paid for by G which was located on the 14th floor of 111 Bathurst Street in Toronto.

[6] When they first arrived in the city, they did not do much because they were tired. C testified that on the next day they went out in the city. She went to get her nails done and returned to their Airbnb in the afternoon.

[7] At some point during the night, D and G went outside the building to smoke a cigarette. C had fallen asleep but was woken by A who asked her to go downstairs to let G and D back into the building because they had the only key to the apartment - an electronic fob which was needed to access their floor when using the elevator.

[8] C agreed. When she approached the 14th floor elevators, she noticed two men waiting nearby. C became uneasy because she suspected that they were not residents of the building. When the elevator arrived, she got in and the two men followed.

[9] A security camera from inside the elevator showed what happened next.

[10] C began to look at her mobile phone and was approached by one of the men who was wearing sunglasses and a Toronto FC baseball cap. The Crown alleges this man was Shane Codrington. The second man, alleged by the Crown to be Jevor Brown, stood in the corner watching.

[11] No sound can be heard on the video but C testified that the man wearing the baseball cap said, “do you want to have fun”. When she said “no”, she was told to “shut the fuck up”. The man wearing the baseball cap took her phone and began to pull down the straps of her dress. She was afraid but tried to resist. The man wearing the cap took out a gun and pointed it at her and yelled at her to “shut up”.

[12] The elevator stopped at the ground floor but the man wearing the baseball cap stood directly in front of C preventing her from leaving. He pressed the 8th floor button and when the elevator doors opened the man wearing the baseball cap forcibly dragged C from the elevator by her hair and the second man exited with them.

[13] C testified she was taken to a nearby stairwell and forced down a flight of stairs. The man wearing the baseball cap began to choke her before demanding she perform fellatio on him as he pointed a gun at her head. He also wanted the password to her phone. The man wearing the baseball cap told C to “suck it” whilst he held her head with his hand. C, scared for her safety, did as she was told. The second man moved behind her and had vaginal and anal sex with her without her consent whilst she continued to perform oral sex on the man wearing the baseball cap. Throughout, the man wearing the cap continued to hold a gun to C’s head and told her to “shut the fuck up”.

[14] The two men swapped positions and the man in the baseball cap raped C from behind whilst the second man inserted his penis into her mouth. The man wearing the baseball cap was making demands keeping the gun pointed at her head whilst the second man remained silent. C could not tell how long the event lasted but said that it ended just after she heard a noise from outside the stairwell.

[15] Just before the two men left the scene the man wearing the baseball cap turned to C and told her “we are going to be looking for you”.

[16] C ran up the stairs to the 14th floor where she found her friends. She saw G standing next to the elevator. She testified that she was crying. G asked her what happened and she told him. C testified that during the sexual assault the man in the baseball cap wanted her password and she physically inputted it into the phone for him. In cross-examination, she said this happened whilst she was performing fellatio on him.

[17] C said that she saw the man wearing the baseball cap using the phone, but did not know what he was doing with it. When she got back to the Airbnb, she tried to rest and ended up taking a shower.

[18] The police were called the next day and she was also seen by a doctor who gave her medication.

[19] When she was cross-examined, C testified that she had never seen Mr. Codrington before. When shown a picture of Mr. Codrington she insisted that this was the person who had sexually assaulted her. She testified that she thought the two men were going to kill her.

D’s Testimony

[20] D confirmed that he came to Toronto with C, A, and G. He said that his memory and recollection of their first night was not particularly good. However, he remembered that he left the Airbnb apartment to go outside for a smoke with G as they were prohibited from smoking inside.

[21] After they had finished their cigarettes, they realised they had not brought their key fob with them and would not be able to get back up to their apartment. Kimberly McLaughlin, the building manager at 111 Bathurst Street, explained that the key fobs were programmed so residents could only go to specific floors although anyone could go down to the ground floor or parking area.

[22] Security cameras situated around the building recorded D and G re-entering the building and accompanying a man in the elevator who only took them up to the 13th floor but not the 14th.

[23] D and G returned to the lobby trying to see if they could find a way to get back to their apartment. At some stage, D phoned A to ask her to come down with the key. Eventually, they found someone who helped them get back to their floor.

[24] When D entered their apartment, he saw C who appeared to be in shock and crying. D said it looked like she was having difficulty breathing and, in his view, looked panicked. In cross-examination, he initially denied thinking that C was joking but when shown his police statement, he conceded that he had initially made that comment to the police. He also told them that C was someone who liked to play jokes which made him think that she might not be telling the truth. D’s initial skepticism was also based on his disbelief that what C described could actually happen in a city like Toronto. D added that at the time he was in shock and that even now he found it hard to understand how an incident like this could happen.

[25] D insisted that he had spoken to A when he and G were unable to return to their apartment but could not specifically identify the exact time on the video recordings. He was also unsure whether he contacted A before or after he got into the elevator. When D first arrived in the apartment, only A was present. He testified that C arrived after he got back.

G’s Testimony

[26] G’s testimony was much the same as D’s. He said he has known C since 2016 and had been to school with her in Montréal.

[27] G confirmed that after finishing their cigarettes, he and D could not return to their Airbnb because they had no key fob.

[28] When they did get back to their apartment, A opened the door and they saw C come up behind them. She was crying and her dress was “loose” as if someone had pulled the elastic strap from her shoulder. She was breathing heavily and told them what happened.

[29] In cross-examination, G, like D, admitted he had initially told the police that he thought C was joking. However, he, too, was in shock, and, again, like D, testified that he found it hard to believe that what C had told them could happen in Canada. G also testified that he slept in a bed adjacent to C that night and could hear her crying throughout the night.

[30] The group delayed calling the police because they unsure of what to do and had difficulty coming to terms with the situation. As they were visitors in the city, it took them some time to try and figure out what to do. G said that when he spoke to the police, he could not fully express himself as his first language was French. He also agreed that he initially thought that C was joking because she was the type of person that could act silly and joke around. However, when he saw the state of her makeup and the way she was shaking he believed her.

[31] The next day, having fully realised the gravity of the situation, he and his friends spoke to building security and called the police. He could not remember whether he wanted to see the camera footage although Kimberly McLaughlin said that both he and D had attended the concierge desk asking to see it. Property management ended up calling the police after Ms. McLaughlin reviewed the recordings. G said that sometime later, Ms. McLaughlin came to his apartment door with the police.

Mr. Codrington’s Testimony

[32] Mr. Codrington testified and denied the allegations. He insisted that he could not have committed the offences as he never went to 111 Bathurst Street on the night of 9 July 2019 or the morning of 10 July 2019.

[33] He testified that he spent the day with his grandmother, met with a lawyer at Yonge and Shepherd and then went to Yorkdale. After that, he made his way to York University, and met his girlfriend Krissy, staying with her until midnight before heading to Burlington and walking along the Lakeshore.

[34] He denied going to 111 Bathurst Street, knowing who Jevor Brown was, or committing any of the allegations contained in the indictment.

[35] Mr. Codrington agreed he was arrested on the 12th of July 2019, and that he was carrying the black duffel bag seized by the police as testified to by Detective Amanda Annetts. He also admitted that some of the items in the bag were his. For example, he said that the clothing belonged to him, but claimed that the police had planted other items including the yellow parking tickets and other documents discovered after the bag was seized. Mr. Codrington also said that one of the arresting officers had stolen $5,000 from him.

[36] When confronted with the phone log relating to the number described by his grandmother as belonging to him - 416 457 2694 - he testified that his phone had been stolen some time in 2018. He also said that his car, a grey Honda with the licence plate BWEH165, had been stolen in January 2019.

[37] Mr. Codrington was unaware of who had stolen his car and licence plate, and testified that neither have been returned to him.

[38] He denied owning the Mazda bearing the BWEH 165 plate which was discovered abandoned by the police. He testified that the handwriting on the piece of paper found on his person containing the complainant’s email and a French address belonged to him. However, he added that he was forced to write that information by the police who, after he had done so, placed the paper in his jean pocket.

[39] He also agreed in cross-examination that 416 457 2694 was his phone number, but that he had not used it since his phone was stolen in 2018. The iPhone found on him when he was arrested used a different number.

ANALYSIS

Approach to the Evidence

[40] As with all criminal cases, the burden always remains on the Crown to prove Mr. Codrington’s guilt beyond a reasonable doubt. The well-known guideline in R. v. W. (D.), [1991] 1 S.C.R. 742, dictates that:

• If I believe Mr. Codrington’s evidence that he did not commit the offence charged, I must find him not guilty.
• Even if I do not believe Mr. Codrington’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
• Even if Mr. Codrington’s evidence does not leave me with a reasonable doubt of his guilt, I may convict only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

Was C Robbed and Sexually Assaulted?

[41] C’s evidence forms the foundation for the essential elements of the counts on the indictment.

[42] Somewhat surprisingly, given the video evidence of the portion of the assault taking place in the elevator, and notwithstanding Mr. Codrington’s testimony that he never went to 111 Bathurst Street on 9 July 2019 and had never met C, Ms. Brown, counsel for Mr. Codrington, sought to argue that C’s credibility as a witness should be called into question.

[43] Ms. Brown pointed this court to G and D’s statements to the police the day after the assault that they did not believe C as examples of her unreliability, attempting to call into question whether or not the assault actually occurred.

[44] I therefore start my analysis by resolving the issue of whether C was robbed and sexually assaulted in the manner she described. In other words, leaving aside the question of identity, has the Crown proven beyond a reasonable doubt the commission of the conduct alleged in the counts?

[45] The video evidence shows C enter the elevator at around 12:24 a.m. followed by two men, one of whom wears a baseball cap and sunglasses and a second man wearing a hoodie. The Crown submits that the timing of the elevator video is out of sync and ahead by two minutes. Looking at the lobby videos, that would appear to be the case.

[46] The video clearly captures the man wearing the baseball cap approaching C and removing her mobile phone from her hands despite her efforts to resist. The video also shows that the man in the cap produced a gun and that C retreating to a corner trying to reason with him.

[47] The elevator is seen to stop at the ground floor and the man in the cap presses the 8th floor button to send it back up, standing in C’s way so she cannot exit. The man wearing the baseball cap advances towards C, holding the gun, and pulling at her dress straps in an attempt to expose her breasts. He briefly touches her breast in doing so. Finally, as the elevator door opens when it arrives on the 8th floor, the man wearing the baseball cap grabs C by the hair and drags her out. During this entire time, the second man looks on calmly and leaves with the man wearing the baseball cap and C.

[48] The video, without question, fully confirms C’s account of the events that occurred prior to being taken to the stairwell.

[49] Accordingly, I find beyond a reasonable doubt that the Crown has proven beyond a reasonable doubt the essential elements of the acts contained in counts 1, 3 and 5.

[50] Turning to the rest of C’s allegations, I reject the argument that she was not a credible witness. Her evidence was given in a forthright and clear manner. She was a convincing witness. There was no reason for her to invent these allegations and, as noted, the video is corroborative of her account of the events in the elevator. I am cognisant that an absence of a motive to lie is not conclusive in a credibility analysis and remind myself that the burden of proof remains on the Crown. There is no requirement that Mr. Codrington demonstrate that C had a motive to lie: see R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at para. 4. However, in this case, the absence of a motive must be considered as a factor.

[51] C’s distress when meeting her friends immediately upon her return to the Airbnb was also confirmed by both G and D. D said that she looked as if she was in shock, was crying, and had difficulty breathing. G told the court that C’s makeup was in disarray and that she was shaking and crying when he saw her. He testified that she continued to cry throughout the night as she tried to sleep.

[52] Kimberley McLaughlin, the property manager who saw C and her friends that afternoon as they tried to determine whether C’s mobile phone had been found by staff, informed the court that C was shaking when she spoke to her.

[53] Finally, Diana Caporiccio, the sexual assault nurse who examined C said that she saw swelling and redness on C’s labia and anus. She was unable to examine C’s vaginal area using a speculum because C told her that she would be unable to bear the pain that would result. Even a routine medical swabbing was impossible because of C’s extreme discomfort. Ultimately, it was left to C to take her own swab sample - something that Ms. Caporiccio advised as being very rare.

[54] Ms. Caporiccio also said C’s neck was tender to the touch and there was redness. She also observed a bruise on the right side of her leg, an injury captured by a photograph taken by police and filed as an exhibit.

[55] The entire weight of the video, civilian and medical evidence leads to the inexorable conclusion that C was sexually assaulted in the manner she described.

[56] The sexual assault examination also yielded another piece of crucial evidence: semen which was examined to determine the donor’s DNA. Diane Polley, a Centre of Forensic Sciences biologist, told the court that on a comparison to DNA belonging to Jevor Brown, the DNA taken from the swab was greater than one trillion times more likely if it originated from Jevor Brown than if it originated from an unknown person unrelated to him.

[57] As a result, I find the Crown has proven beyond a reasonable doubt that Mr. Brown was one of the men that sexually assaulted C in the stairwell. This, of course, is relevant to the Crown’s burden of proof in relation to Count 8.

[58] However, based on the evidence at this trial, I am not persuaded that Jevor Brown participated in the commission of any offence in the elevator. He appeared to simply stand in the corner and observe the man in the cap’s actions. I would therefore dismiss Count 7 on the basis that Mr. Brown was not a party to the offences committed by the man in the cap in the elevator.

[59] For these reasons, I find beyond a reasonable doubt that the essential elements of the acts in the remaining counts which deal with the offences in the stairwell to have been proven beyond a reasonable doubt.

The Phone Logs

[60] In light of these findings, it is clear that the central question in this case is one of identity: has the Crown proven beyond a reasonable doubt that it was Mr. Codrington who committed these offences?

[61] The first question to be answered is whether Mr. Codrington attended 111 Bathurst Street on the night in question. He denies doing so, but the phone logs tendered by the Crown completely undermine Mr. Codrington’s account and show that he did.

[62] Deborah Codrington, the accused’s grandmother, confirmed that the number she used to contact Mr. Codrington was 416 457 2694 (“the 2694 number”).

[63] The phone logs relating to that number - tendered as an exhibit at trial - showed that the owner of that number engaged in a series of text messages on 9 July 2019 around 10:35 p.m. arranging to meet someone. At 10:34 p.m., the number received a message from number the 613 702 4216 (“the 4216 number”) asking “So u gonna coming?” The 4216 number responded by saying “Yeah”. At 10:35 p.m., the person texting the 2694 number sent a message saying “111 Bathurst street”. The 2694 number replied “Alright thanks” and then “I let u know when I am there”. The 2694 number texted another number as well, arranging to meet with them and telling them that “I let u know when I am there”. The 2694 number then received a message at 10:43 p.m. which said, “You come right now, babe?”. At 11:29 p.m., the 2694 number said “I’m here”.

[64] I accept Deborah Codrington’s testimony that the 2694 number was the number used by her grandson, the accused, Shane Codrington at the time of the alleged events.

[65] I conclude from this evidence that Mr. Codrington was the person texting from 416 457 2694 and expressing his intention to go to 111 Bathurst Street, letting the recipient know that he had arrived.

[66] It is clear from these messages that Mr. Codrington was at 111 Bathurst Street at 11:29 p.m. on July 9th. This of course, is around the very same time that the video surveillance shows the man in the baseball cap entering the building with the second man in the hoodie.

[67] When the video recordings are compared, there can be no doubt that these two men who enter the building at the parking level are the same two men who enter the elevator with C.

Was Mr. Codrington the Man in the Cap Seen on the Surveillance Video?

[68] The next question to be answered therefore is whether the Crown has proven beyond a reasonable doubt that Shane Codrington was the man wearing the baseball cap – seen on the videos from 111 Bathurst Street’s surveillance system - who committed the criminal acts described by C.

[69] It should be noted that C did indeed identify Mr. Codrington as the man wearing the baseball cap when shown a photograph of him at this trial. However, I place no weight on this evidence as it is equivalent to a dock identification where a witness will undoubtedly identify the accused person before the court: see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 49-53.

[70] I am, however, permitted to compare the images captured on video to Mr. Codrington who sat before me in the courtroom pursuant to the principles enunciated in R. v. Nikolovski, [1996] 3 S.C.R. 1197, at paras. 28-29. The recordings, particularly those inside the elevators, are of a high quality and display a clear picture.

[71] The man wearing the baseball cap bears a striking resemblance to Mr. Codrington. He is of the same build and height as Mr. Codrington, and his visible features are very similar.

[72] However, the similarities do not end with Mr. Codrington’s physical attributes. The shirt worn by the man in the Toronto FC baseball cap is almost identical to the one found in Mr. Codrington’s duffel bag when he was arrested on 12 July 2019. In addition, the shoes worn by the man in the cap match the pair seized from Mr. Codrington on his arrest.

[73] Other videos that recorded the same two men entering and leaving the building and elevators are also clear enough to make out Mr. Codrington’s features and the clothing that he wears, which also matches the clothing seized on his arrest.

The Mazda

[74] Then there is the Mazda vehicle seen entering 111 Bathurst Street shortly before the events in the elevator and departing shortly afterwards. The Crown argues that Mr. Codrington was the owner of the car.

[75] On the video recordings, the Mazda is first seen outside the alleyway between 111 and 95 Bathurst Street pointed towards the parking lot of the building. A series of black stickers or tape are located on the left side of the car. The Mazda is captured entering the underground parking driving down the ramp. At trial, Deborah Codrington, the accused’s grandmother, identified the car as belonging to her grandson. She pointed out that the duct tape visible on the Mazda was the same as she had seen on Mr. Codrington’s car.

[76] This car, clearly identifiable by the same duct tape on its left side, was later found abandoned on Durant Avenue in between Memorial Park Avenue and Mortimer Avenue. The car was bearing the licence plate BWEH 165, the licence plate registered to Mr. Codrington.

[77] Other videos taken by the building’s security system show the same two men that can be later seen assaulting C in the elevator entering the building at 12:26 a.m. from the parking garage at P1 level. Another video shows the two men at the lobby entrance at 12:28 a.m. waiting around before following a couple into the building after they have used their key to enter. At 12:30 a.m. the video clips show the two men following a man and his dog into the elevator.

[78] As noted, the assault of C in the elevator occurs at a recorded time of 12:44 a.m. - or rather 12:42 a.m. in real time. The two men are next seen at 1:02:55 a.m. in the elevator (with the elevator video time displaying at 1:04:55 a.m.). The next video - at 1:03:27 a.m. shows the two men leaving the P1 parking level and returning to the parking lot. At 1:03:59 a.m., the Mazda drives up the garage ramp and leaves the building.

[79] This timing appears to support the Crown’s argument that the men who assaulted C and who were captured on the videos that I have referred to were driving the Mazda.

[80] The Crown seeks to link Mr. Codrington to the Mazda in four ways. First, as noted through the testimony of Deborah Codrington who identified the car as belonging to Mr. Codrington. Second, through the video evidence obtained from a security camera at a gas station on Kingston Road in Toronto recording events on 11 July 2023. Third, through Mr. Codrington’s ownership of the licence plate found on the abandoned Mazda, and fourth, through documents found in Mr. Codrington’s possession.

[81] I have already dealt with Ms. Codrington’s evidence.

[82] The gas station video shows a grey Mazda bearing the licence plate BWEH 165 entering the gas pump area of a station at 4660 Kingston Road in Toronto on 11 July 2019. Two men emerge from the car. One is clearly the second man from the elevator who the DNA has identified as Jevor Brown. The other male is someone who looks very much like Mr. Codrington. Further video clips show the two men enter the gas station kiosk area. Both men re-enter the Mazda and drive away.

[83] Mr. Codrington agreed that he owned the licence plate number BWEH 165 but, as noted, testified that this plate had been stolen along with his Honda sometime in January 2019. He said he had never owned a Mazda.

[84] For the following reasons, I reject his explanation and find that the Mazda did indeed belong to him.

[85] First, as I have already described, his grandmother Deborah Codrington identified the car as his and testified that she had seen him with it.

[86] Secondly, his assertion that his licence plate was stolen in January 2019 is contradicted by two parking tickets found in his bag. One, dated 2 July 2019, lists the car as being a Mazda with the licence plate of BWEH 165. The second is a ticket for the same car and licence plate dated 8 July 2019. Significantly, this ticket lists the location of the violation as 2020 Sheppard Avenue West - Deborah Codrington’s address.

[87] In addition, police also found a Visitor Parking Authorization with the same licence plate number to permit the holder to park at 2020 Sheppard Avenue West.

[88] According to Mr. Codrington, the police placed these parking tickets in his bag when they arrested him. In cross-examination, when pointed out that the two tickets were found in his pocket, he denied that fact. He also claimed that the parking authorisation was an item planted by the police.

[89] I reject his evidence. There is not a shred of evidence that the police planted these items, and this was never suggested to them when they testified.

[90] I am not prepared to accept that there was some type of police conspiracy to falsely incriminate Mr. Codrington. The documents show that he was being untruthful about his plate being stolen and that he had never owned a Mazda.

[91] I find Mr. Codrington was simply trying to explain away the unexplainable: that he was driving the Mazda in July 2019 and did so on the night of 9 July 2019 and the early morning hours of 10 July 2019 when he drove in and out of 111 Bathurst Street.

The Paper with C’s Email Address on it

[92] Finally, there is the paper note found in Mr. Codrington’s pocket when he was arrested. This paper listed C’s email address along with an address in France that was never identified.

[93] Mr. Codrington admitted that the handwriting on the note belonged to him, but said that he was forced by one of the arresting officers to write it. He said he had no knowledge of the addresses. After he had written out the details on the note, it was placed in his back pocket by the police.

[94] Again, I disbelieve Mr. Codrington. There is no evidence that any officers did this and, again it was never put to them on cross examination at trial. Nor is there any reason for the police to have falsely incriminated Mr. Codrington.

[95] Like the other items of evidence, the fact that Mr. Codrington had details of a person whom he claims he had never met located in his pocket at the time of his arrest is more than just mere coincidence. I find it to be evidence that Mr. Codrington met C when he attended 111 Bathurst Street and forced her to give him his phone - the source of these details.

The Absence of DNA

[96] Ms. Brown points to the fact that only Jevor Brown’s DNA was found on C. She submits that there is no forensic evidence linking Mr. Codrington to the attack. The absence of such evidence, says Ms. Brown, must lead to a reasonable doubt that Mr. Codrington was the man wearing the baseball cap or that he ever committed a sexual assault.

[97] I disagree. Diane Polley explained that it was possible for a second person, in addition to Mr. Brown, to have had sexually assaulted C without any DNA being found.

[98] According to Ms. Polley, there were a number of ways that the absence of Mr. Codrington’s DNA could be explained.

[99] First, it could be that Mr. Codrington did not have sexual relations with C. However, it was also possible that if Mr. Codrington had not ejaculated, there would be no semen from which to collect DNA samples. or that Mr. Brown’s ejaculate and DNA might have masked or removed any cellular material belonging to Mr. Codrington which would make his DNA undetectable. Finally, even if Mr. Codrington ejaculated, if his seminal fluid did not contain a great deal of sperm, it could have been concealed by Mr. Brown’s semen.

[100] Ms. Polley also pointed out that C had showered prior to being examined. Doing so would have had the effect of removing cellular material from the external parts of her body. Ms. Polley testified that due to the passage of time between the alleged assault and her examination of C, she would not expect to find anyone else’s DNA in C’s mouth because of normal oral activity such as swallowing. Any DNA left in her anus would also be quickly lost because of showering and defecating.

[101] For these reasons, I find that the lack of DNA evidence linking Mr. Codrington to C’s assault does not raise a reasonable doubt about his guilt.

CONCLUSION

[102] For the foregoing reasons, I find the Crown’s case to be overwhelming. The essential elements of all the criminal conduct in the counts (apart from Count 7) have been proven beyond a reasonable doubt.

[103] I reject Mr. Codrington’s evidence and it does not raise a reasonable doubt in my mind about his guilt.

[104] C was sexually assaulted in the elevator by Mr. Codrington and in the stairwell by Mr. Codrington and Jevor Brown.

[105] During the course of the assault, Mr. Codrington used what appeared to be a firearm when he robbed C of her phone in the elevator (Count 1, 3 and 5) and when he sexually assaulted her by pulling down her dress strap and touching her breast area (Count 2). He then confined her, first in the elevator preventing her from leaving, and again in the stairwell to which he and Mr. Brown dragged her as they continued their assault (Count 4).

[106] Once in the stairwell, Mr. Codrington and Mr. Brown did as C testified. They anally and vaginally raped her and forced her to perform fellatio on them, alternating their positions (Count 8). Throughout the course of this ordeal, Mr. Codrington held a gun to her head (Count 6).

[107] Despite Mr. Codrington’s denials, the Crown has proven beyond a reasonable doubt that he was the man wearing the TFC baseball cap in the video surveillance from 111 Bathurst Street.

[108] He can be identified on the elevator video pursuant to Nikolovski. The man in the video’s visible features clearly match those of Mr. Codrington. Any doubt that exists evaporates when considering the evidence that when arrested, Mr. Codrington was found in possession of a shirt and shoes that appear identical to those worn by the man in the elevator. He was also found with of a piece of paper bearing C’s email that could only have been obtained if he had been in contact with her. In my view, that contact consisted of him stealing her phone and extracting details from it. Finally, his car with its distinctive duct tape is seen entering and leaving the building shortly before and after the attack on C.

[109] In addition, it is clear that Mr. Codrington was present at the scene. His Mazda bearing his licence plate enters the building minutes before the incident and leaves very shortly afterwards. His phone logs show that he had made plans to go to that building.

[110] There can be no dispute that the other person accompanying him was Jevor Brown, also captured on video, and whose DNA was found on an internal swab taken from C.

[111] For these reasons, I find Mr. Codrington guilty on Counts 1-6 and Count 8.

S.A.Q. Akhtar J. Released: 11 July 2023