Warning An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue and an order under s. 648 is now in place. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

COURT FILE NO.: CR-22-15819 DATE: 01/19/2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ANTHONY DOIRON-FRANCIS Defendant

Counsel: Ms. Holland and Ms. Tait, for the Crown Mr. Sciarra and Mr. Pashang, for the Defendant

HEARD: November 14, 15, 16, 20, 22 and 29, 2023

Judgment

Justice Verner

[1] Anthony Doiron-Francis stands charged with attempted murder and aggravated sexual assault in relation to a serious attack on a female stranger. Doiron-Francis admits that he assaulted the complainant, who has no memory of the attack, in a densely wooded area at approximately 9:30 pm on July 28, 2020, and left her by a creek, semi-conscious and severely wounded. Doiron-Francis admits he is guilty of aggravated assault, the issues for the court are whether he is guilty of attempted murder and whether the attack was sexual.

[2] Nothing in this judgment should be taken as belittling the serious nature of the offence on the complainant. Doiron-Francis has accepted his guilt of a very serious offence. Indeed, absent the heroic and awe-inspiring work of both the police and the medical personnel involved in this case, this would have been a homicide.

[3] Most of the Crown’s case was introduced by way of an agreed statement of fact, which was supplemented by the testimony of three police officers, two paramedics and a treating physician, Dr. Aaron Nauth. To the extent Dr. Nauth gave opinion evidence, it went in on consent of the parties. Based on a brief summary of his experience and training, there is no question he was qualified to give the few opinions that he offered. He was cautious in not giving evidence outside of his expertise.

[4] The Defence introduced a second agreed statement of fact and Doiron-Francis testified on his own behalf.

A. The Crown’s Case

The Offence

[5] Just after 8 pm on July 28, 2020, Doiron-Francis, a tall, large male, approximately 20 years old, who weighed over 220 pounds, was sitting on his porch on Fawcette Avenue in Whitby, with his uncle. He was having issues with his family around that time. At 8:16 pm, he got up to go for a walk. He was wearing a white t-shirt, light coloured shorts, dark socks, slip-on sandals and a black bucket hat. Portions of his walk were captured on his neighbours’ security cameras. The police put together a compilation of the security videos, which showed that Doiron-Francis initially headed eastbound from his house.

[6] At approximately 8:30 pm that evening, the complainant, who lived in the same neighbourhood, also went for a walk. She was 50 years old, stood at approximately 5 feet 7 inches tall and weighed 154 pounds. She was wearing purple formfitting athletic pants, a black top, ankle socks and lace-up running shoes. The video compilation showed her walking westward by Doiron-Francis’ home at 8:56 pm and Doiron-Francis following her path, 1 minute and 26 seconds later. He had been out walking for 41 minutes by that point.

[7] Doiron-Francis followed the complainant’s path, which included several turns, for another 27 minutes. For most of the walk Doiron-Francis was close to two minutes behind the complainant. However, at the end of the video compilation, he was only 24 seconds behind her. The compilation ends at 9:23 pm just outside a wooded area on Anderson Street, where the complainant was assaulted.

[8] At approximately 10 pm, an eyewitness spotted someone matching Doiron-Francis’s description at the intersection of Anderson Street and Taunton Road, which was on route from the scene of the attack to Doiron-Francis’s home. He was wearing teal blue boxer briefs and carrying a white or beige piece of clothing. He looked around “frantically” and jogged away as soon as the light turned green.

[9] Doiron-Francis’s father noted his son came home that evening “without any clothes on” and with a fractured hand. Doiron-Francis explained to his father that he had been attacked by three Somalian men. He told his uncle that he injured his hand when he was “jumped” by two males in a park. His father took him to the hospital, security footage reveals they left for the hospital at 10:26 pm.

[10] At 11:58 pm on July 28, 2020, when Doiron-Francis was still at the hospital, he did a web-search on his phone for “Whitby news” and clicked on three links. He did not do any other searches or click on any other websites while he was at the hospital, and he had never done a similar search before on his phone. His father picked him up from the hospital over an hour later, at 1:39 am on July 29, 2020. At 2:31 am, after he got home, the first website he visited was another Whitby news site. Just after 10 am, he did yet another web-search for local news and clicked on a couple of related websites. The complainant had not yet been found.

Finding the Complainant

[11] The complainant’s husband first contacted police at approximately 11 pm on July 28, 2020, after she had not come home from her walk and after he had unsuccessfully looked for her. The police searched for her throughout the night. At approximately 10:25 am, Officer Marchand, who was on the police search team, spotted her. As he was walking with his partner, Officer Foote, along Anderson Street, Marchand spotted the complainant through a densely wooded area. She was over 7 metres away from him and down an embankment. Marchand directed Foote to call an ambulance as he ran to the side of the complainant.

[12] The wooded area graded down from the sidewalk; after a few metres it flattened out; and then there was a one metre embankment, which dropped down to a creek. When Marchand reached the complainant, she was not conscious. She was lying on her right side at the bottom of the embankment, such that her right arm was hidden under her body and her right leg was submerged in the rocky creek. There were a number of large rocks in the complainant’s immediate vicinity. Her head was either on top of, or beside a large rock, out of the water, but near the side of the creek.

[13] The complainant was still wearing her top and her right shoe and sock, but her pants and underwear were down around her right ankle. Her left sock was later located in the creek, and her left shoe was found by the side of the road alongside both of Doiron-Francis’s slip-on sandals.

[14] When Marchand found the complainant, she was cold and her skin was discoloured. She had two black eyes and her face was severely swollen, such that she “almost didn’t look human”. Her nose was almost consumed within the swelling of her cheeks. Her jaw was unnaturally hanging down; it appeared to be in two pieces, and it was unclear how it attached to the rest of her face. She was missing teeth in one half of her mouth. There was blood pooling in her ear. Marchand initially had difficulty finding a pulse, as her neck was so swollen. However, he eventually felt a weak pulse. He did not see her chest rise or fall, but heard a “horrific gargling noise”.

[15] He wanted to clear out her airway but was also concerned about her face further collapsing. He attempted to hold her face together, as he used a finger to take the blood out of her mouth. Along with the blood, came hard pieces that he presumed were teeth.

[16] A call went out to Emergency Medical Services at 10:26 am. Two paramedics were informed of the call two minutes later. They were around the corner from the scene at the time and therefore arrived within seconds. They assisted Marchand in getting the complainant on a spinal board, as fire fighters used chain saws to cut away some of the dense brush to make a path to the road. The paramedics took the complainant via ambulance to the local airport, where they met the helicopter paramedics, otherwise known as Ornge paramedics.

[17] The Ornge paramedics intended to take the complainant to the trauma centre at St. Michael’s hospital in Toronto. However, as the ambulance pulled into the airport, the complainant lost her vital signs. The paramedics did CPR and took her in the ambulance to the local hospital to stabilize her vital signs enough so that she could eventually be transported in the Ornge helicopter to the trauma centre in Toronto. They arrived at the local hospital at 11:20 am, and at 11:52 the complainant was pronounced dead. Somewhat miraculously, her heart started beating again soon thereafter.

The Complainant’s Injuries

[18] At 1:58 pm, the complainant was stable enough to be transported to Toronto. She arrived at the St. Michael’s trauma centre at 2:54 pm. She was listed as being in critical condition with rib fractures, a collapsed lung, a broken spinal bone at the top of her spine, skull fractures and bleeding around the brain.

[19] The treating physician, Dr. Nauth testified that her injuries were similar to those associated with serious car accidents, or assaults with a weapon, such as a crowbar or a steel-toed boot. He testified that if the injuries were the result of an attack by an unarmed individual, the attacker would likely have injuries to show for it, such as broken or bruised knuckle bones.

[20] When Dr. Nauth was asked if the injuries could be attributed to a fall, he said in part:

When you see higher energy injuries like [the complainant’s] we’re thinking about somebody who fell, if it is going to be attributed to a fall, a substantial height like 20 feet or more. If somebody brought [the complainant] in and said she just tripped over the curb and fell on the sidewalk, I’d say ‘not possible’.

[21] In cross-examination, Dr. Nauth agreed that if the complainant fell face first on rocks from a height (the height was not specified), that could explain some of her facial fractures. He was doubtful that such a fall could explain all her injuries, since she suffered injuries from multiple angles. However, he agreed that if she fell and someone fell on top of her, “crushing her”, that may explain injuries from different angles. He further agreed that her injuries may be the result of a variety of impacts, such as a combination of punches and a fall.

[22] In addition to the broken bones, the complainant was bleeding under the skin at the front of her neck, but there was no damage to her airway. Dr. Nauth agreed with the defence that this bleeding could be explained by force being applied around the neck.

[23] At 6:35 pm that evening, a sexual assault kit was completed. There were no injuries to the complainant’s lower genitals. There was no DNA detected on her breast, ear or neck, and there was either no male DNA or insufficient male DNA for testing on the vaginal and anal swabs that were taken. The sexual assault nurse also noted amongst scrapes and abrasions all over the complainant’s body, a series of scrapes on her right buttocks’ cheek. These scrapes were consistent with her having been dragged along the ground or having fallen.

[24] When the complainant’s husband first saw his wife he noted, in addition to the injuries already mentioned, that she had a punctured lung, kidney failure, “contusions and abrasions all over her arms and legs and a large contusion on the back of her head”. He noted bruises that appeared as “handprints on her inner thighs”. The sexual assault nurse did not notice these bruises, and although the complainant’s husband took some photos, there are unfortunately no photos of these inner thigh bruises.

Events After the Offence

[25] The first related web-search that Doiron-Francis did on his phone after the complainant was found in the creek was a search done at 8:02 pm on July 29, 2020, 9 hours after she was found and 10 hours after his last “Whitby news” related search. At 8:02 pm, he did a web-search for “how many murder cases go unsolved”, and did a second similar search one minute later. He continued to do news related web-searches from 12:37 to 1:21 am on July 30, 2020, as well as at 6:24 am, from 11:11 am to 12:52 pm, from 3:25 to 4:47 pm and from 5:18 to 8:11 pm. At 8:12 pm on July 30, 2020, he started to do web-searches related to moving to Ottawa. The record of his web-activity over the following days shows a continued pre-occupation with Whitby news. He also did several assault, and even aggravated assault related web-searches. Although he never did a sexual assault related search, after doing a search for “assault charge canada”, he clicked on a website titled, “Minimum Sentence Sexual Assault Canada/Kruse Law”.

[26] Aside from looking into moving to Ottawa, he also looked into travelling to British Columbia, Nunavut and North Dakota. On August 4, 2020, he travelled to Ottawa, where he had several friends he could stay with. On August 13, 2020, he was arrested in Ottawa at a friend named Tyler Cameron’s home.

[27] The complainant remained at St. Michael’s Hospital for almost a month, until August 26, 2020.

The Scene

[28] Police located the complainant’s left shoe in some brush beside the sidewalk on Anderson Street, near where the complainant was found. Her left shoe was facing into the woods and was on top of Doiron-Francis’s right sandal, which was facing toward the road. His left sandal was approximately one foot further into the brush facing the woods.

[29] Police followed a trail of what appeared to be blood from the spot the shoe and sandals were located, through the dense woods, to the spot where the complainant was found. Although several of these alleged drops of blood were swabbed, none were tested to assess whether they were indeed blood, or for DNA. The ground along the entire path was covered in leaves, twigs and fallen trees. There was a large stick on the path, approximately 28 cm long and 4 cm in diameter, which was covered in red staining. The Crown did not suggest in submissions that this stick, or any other specific item found at the scene, was used as a weapon.

[30] Aside from the blood on the complainant’s body, there was nothing that appeared to be blood around her or near the creek. The police who visited the scene testified that if there had been blood there, it was likely washed away by the running water. They similarly agreed that although they were unable to find the complainant’s missing teeth, the teeth may have been washed away.

The Statement

[31] Police interviewed Doiron-Francis’s friend, Tyler Cameron, who had heard a description of the attack from Doiron-Francis. Cameron was reluctant to talk to police. It seemed he was trying to protect Doiron-Francis, but at the same time, felt obliged to give the police some information.

[32] Cameron told police that he spoke to Doiron-Francis about the offence for approximately two minutes. He implied that most of those two minutes did not involve Doiron-Francis providing details of the events. In particular, he said, “Like most of it was like ‘I don’t know why’ like and it was like, ‘Man, like you know, like we shouldn’t, like we all have our own problems but like sometimes we just take them out’” at the wrong time. He explained that Doiron-Francis was really upset with his family at the time of the offence.

[33] The version of events Doiron-Francis gave Cameron was admitted for its truth pursuant to an agreed statement of fact. According to Cameron, the offence was as follows:

Like he went out and like he saw her and like they were just walking but like she was ahead, and like he just hit her and like she started screaming and stuff and like she wouldn’t stop screaming. And there was people coming and like he just tried her to like, be like, “shh, shh, stop, like I’m sorry, like just please stop.” Like and like he – she just wouldn’t be quiet and that was like it. ‘cause like he started like, after that, he’s like started saying like, “Oh,” like, “she wouldn’t, she wouldn’t…” I was like, “Okay, you need to stop, like I don’t want to talk about this, like this isn’t really what I’m interest in…..so I was just kinda like doin’ my own thing while he was saying like the ret (ph), like the deeper parts and I was just like, “Yeah, you kno, like I don’t want be a part of this. I don’t wanna talk about this.”

He was like he kept hitting her ‘cause she wouldn’t like be quiet and there was people coming and he didn’t know if they were – and he was freaking out. That’s when I was just like, I put on my headphones. I could still kinda hear him but like I don’t really remember ‘cause I wasn’t payin’ attention.

The last thing is like he put her by the water.

Like he, it just happened outta nowhere, he said. It was just, like he was mad and it was just like he walked – he was walking and like, I don’t know, like if she, if he was walking behind her or like they were coming across but like it was just like he hit her and then like he kept hitting her. And she, she wouldn’t shut up and so once he was like, “You know, she wouldn’t shut up, she wouldn’t shut up,” and he just kept hitting her and like he dragged her by the water.

[34] The officer asked Cameron if anything happened after Doiron-Francis dragged the complainant to the side of the water. Cameron responded, “I don’t think so”.

B. Doiron-Francis’s Evidence

[35] Doiron-Francis testified that July 28, 2020 was a normal day for him. He worked, came home, had a couple of bottles of beer with a co-worker, a drink by himself and a couple of more drinks, along with some marijuana with his uncle. He was still on his front porch with his uncle, when a woman with a large buttocks walked by. At that point, at 8:16 pm, he told his uncle he was going for a walk, but in fact he had the intention of catching up with the woman who had passed by his home, and filming her buttocks “jiggling” as she walked.

[36] Doiron-Francis explained that he had a perverted habit of surreptitiously recording women’s buttocks jiggling up close. An agreed statement of fact supported his evidence that he had this perverse habit. Prior to this offence, he had followed several women and filmed their behinds surreptitiously with his phone. However, the films never depicted him following a woman for more than a few minutes, never depicted him following a woman outdoors and all the recordings on his phone were done in well lit areas.

[37] According to Doiron-Francis, the woman he started following on July 28, 2020 went into her home before he got close enough to record her walking. He then went to a nearby park and waited for another possible victim, at which point he spotted the complainant. He started to follow her with the intention of catching up to her and filming her buttocks. Doiron-Francis testified that after following her for half an hour, they got to an area where there was forest on both sides of the street, and at that point he realized that his phone battery was about to die. He was concerned that he was not going to be able to get a recording to satisfy his perversion, and so he closed the gap between him and the complainant and got right up behind her. It was dark by that point, so he needed to turn on his phone’s flashlight in order to film her.

[38] However, turning on the flashlight inadvertently alerted the complainant to his presence. She turned around and confronted him. His gut reaction was to “whack” her across the face with his phone. The complainant started screaming. In an effort to stop her from screaming, he reached out and grabbed her. As he did so, he lost his footing and started falling towards the woods. As he was falling, he grabbed the waistband of her pants. He ended up pulling her pants partially down. During this initial struggle, he lost both his sandals and his phone, and she lost her left lace-up running shoe. Doiron-Francis described a struggle between the two of them that moved into the woods and down the incline. He explained that he did not walk away from the entire event, as he needed to get the complainant to stop screaming and he could not leave his phone behind at the scene. He clarified that he was worried about his phone, since it had many videos of him surreptitiously recording women’s buttocks. During the struggle with the complainant, he punched her a number of times to quiet her down, he could not say how many. One of his punches was particularly hard and was between the eyes. He said it “slumped” her, which meant it momentarily stunned her.

[39] According to Doiron-Francis, the complainant was on her back on the ground at one point, kicking up at his chest. He reached out and grabbed her pants in an attempt to stop her from kicking. However, she continued to kick and as she did so, her pants came all the way off of her left leg, and went to the bottom of her right leg. He testified as to what happened next, as follows:

She used the momentum to turn on her fuckin’ knees and try to run away and I just fuckin’ took the opportunity to jump on her back and try to fuckin put her in a headlock, you know I tried to put her in a sleeper hold. I was done with that shit. I didn’t want to fuckin’ fight her. I didn’t want to hurt her but I didn’t want to fuckin’ continue with this shit, so I tried to get her to pass out and put her in a headlock.

[40] He clarified that when he said he jumped on her back, he did not mean that his feet jumped on her back. Instead, he compared his actions to jumping onto the back of a horse. He explained that all of his weight was on her back and he was close enough to her, to put her in a “sleeper hold”. As soon as he had his arm around her neck, they “just started rolling around with each other”. As they were rolling, they did a couple of “tumbles”, “then, out of nowhere there was a fuckin cliff that” they went over. He clarified that it felt like a cliff, but agreed that they must have fallen off the one-metre-high embankment.

[41] Doiron-Francis said they had a really hard landing on the rocky creek bed below. The complainant’s face took the brunt of the fall for not only her weight, but for his weight as well. His hand, which was on her mouth, took some of the weight of the fall and that alone caused significant pain. He testified that he later learned that he broke a bone in the middle of the back of his hand. His hospital records were not entered as an exhibit and his friend Cameron told police that Doiron-Francis broke two fingers, rather than a bone in the back of his hand. However, according to Cameron, Doiron-Francis’s fingers did not appear broken, they appeared normal, and the photos of Doiron-Francis upon his arrest show a serious scar at the back of the middle of his hand, consistent with his evidence.

[42] Doiron-Francis testified that after he and the complainant fell off the embankment, Doiron-Francis could hear the complainant making noises in the water. He described it as “snoring”. The complainant was semi-conscious and breathing. Her face was in the water. He took the time to move her, such that her face out of the water and at the side of the creek. He placed her in a position that ensured she would not roll back into the water while semi-conscious. He then left the area. He found his phone “near the top” of the hill in what he agreed was a “wooded” area. He could not give any further detail as to where he found his phone, as it was too dark for him to see.

[43] Doiron-Francis then headed home. As he got to the first streetlight, he noted that his clothes were bloody and ripped. He took off his shirt and shorts and carried them part way home, but discarded them before he walked into his house. When he got home, he was immediately confronted by his father who asked him where his clothes were. He informed his father that he had been attacked by a couple of men. He told his uncle essentially the same story. He charged his phone and had a shower. When he got out of the shower, he realized that his hand needed medical attention. His father took him to the hospital.

[44] Doiron-Francis denied that he intended to kill the complainant. He was aware at the time of trial that a sleeper hold could potentially kill her, but testified that was not his intention at the time. He repeatedly emphasized that he wanted her to live. He further denied knowing at the time he left the scene that night, and even after he left the scene, that she was possibly dead. However, when asked why he did web-searches for “Whitby news” after the offence, he explained that he was trying to find out “if this woman had gotten out and reported this to police”, and further explained he “was wondering if she had been able to go to the road and ask for help…hopefully she got out and asked for help.” His own words suggest that he knew she possibly had not survived.

[45] Doiron-Francis also denied that the assault was sexually motivated. When asked why he clicked on a website titled “Minimum Sentence Sexual Assault Canada/Kruse Law”, he explained that at the time he clicked on that website, the news suggested, that police believed, the complainant had been sexually assaulted. He accordingly feared that if he was eventually caught, he would be charged with sexual assault and for that reason was interested in what his jeopardy was. The record of his web-activity confirmed that at that time, he had seen news websites, which suggested that authorities believed the assault was sexually motivated.

Legal Issues

[46] Doiron-Francis aptly admitted his guilt to aggravated assault. Pursuant to s. 268(1) of the Criminal Code , “ Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.” The accused need not intend to wound, maim, disfigure or endanger life, there only needs to be the objective foresight of bodily harm to be guilty of aggravated assault: R. v. Godin, [1994] 2 S.C.R. 484. When Doiron-Francis “whacked” and “slumped” the complainant, there was objective foresight of bodily harm. The assault left the complainant wounded, maimed and disfigured, as well as endangered her life. This was an aggravated assault.

[47] The issues for the court are:

(I) Is Doiron-Francis guilty of attempted murder? And,

(II) Is Doiron-Francis guilty of sexual assault?

(I) Attempted Murder

[48] The first question for the court is whether Doiron-Francis is guilty of attempted murder, which has a higher degree of mens rea than does murder. To be guilty of murder , the accused either has to have intended to kill, or has to have intended to cause bodily harm that he or she knew was likely to cause death and was reckless as to whether death ensued. Whereas for attempted murder , the Crown has the onus of proving that the accused had the specific intent to kill: R. v. Ancio, [1984] 1 S.C.R. 225, at para. 37 .

[49] The Crown must prove Doiron-Francis had this intent beyond a reasonable doubt, which is a high threshold. It would be insufficient for the Crown to prove that Doiron-Francis probably intended to kill the complainant. “Probably” is not proof beyond a reasonable doubt. Although the Crown need not prove the elements of an offence to an absolute certainty, the Crown’s burden is much closer to that threshold, than it is to a balance of probabilities: R. v. Starr, 2000 SCC 40, at para. 242 .

[50] Since Doiron-Francis testified to the effect that he did not intend to kill the complainant, I must keep the principles from R. v. W.(D.), [1991] 1 S.C.R. 742 in mind, in assessing whether the Crown has met its burden. In particular, I must (1) consider whether I accept Doiron-Francis’s evidence, in which case I must obviously find him not guilty of attempted murder; (2) consider whether even if I do not believe Doiron-Francis’s evidence, it leaves me with a reasonable doubt; and (3) consider whether, even if the defence evidence does not raise a reasonable doubt, the Crown’s evidence proves beyond a reasonable doubt that Doiron-Francis had an intent to kill. Furthermore, in assessing this third branch from W.(D.), I must keep in mind that the Crown’s evidence on this issue is purely circumstantial, and accordingly, the Crown must prove that the only reasonable conclusion on the evidence is that Doiron-Francis had formed an intent to kill: R. v. Villaroman, 2016 SCC 33, at para. 30 .

Analysis

[51] Although, I must consider all three branches of W.(D.) before I can convict, I need not consider them in any particular order. Having said that, I will start with a consideration of Doiron-Francis’s evidence.

[52] Doiron-Francis described himself as being “verbally unhinged”, which was apparent from how he delivered his evidence. He never hesitated. His answers were fast, but at the same time long and rambling. They were repetitive. They were full of curses and the use of religious names in vain. He used vulgar terms. He was often quite disrespectful to the complainant and at other points he was respectful of her and seemingly showed insight as to how she would have perceived the situation. He expressed extreme guilt for the long term impact the assault will have on her life. He also claimed to have prayed to his god for her to survive, but then explained that he did so because his god was the only one who could help him at that point.

[53] I found it bizarre that Doiron-Francis insisted on referring to the interaction as a fight between a man and woman, rather than as an attack, even though on his version of events, all she was doing was defending herself. There is no question this was an attack, even if his purpose in attacking her was to keep her quiet.

[54] The speed of his answers together with his blunt language left me with the sense that Doiron-Francis’s testimony was not rehearsed, coached or shaped. Although I do not believe everything he said, there was a genuineness about it.

[55] It is also noteworthy, that despite his fast and rambling answers, his version of events was, for the most part, consistent. Furthermore, his sequence of events was corroborated by several factors:

(i) The forensic evidence at the scene suggests that this was a frenzied attack as he described, which started at the sidewalk, where their footwear was located, and moved down the incline to the creek.

(ii) Dr. Nauth implied that the complainant’s facial injuries could be explained by a combination of punches to her face, followed by her falling face first on large rocks, such that her face took the brunt of the fall for both her weight and the weight of another person.

(iii) The bruising around the complainant’s neck and the lack of compromise to her airway, are consistent with Doiron-Francis having his arm around her throat, trying to put her in a “sleeper-hold”.

(iv) The evidence weighed in favour of finding that Doiron-Francis had no serious injury to his fingers or knuckles, and the Crown did not point to any potential weapon found at the scene. His version of events therefore helps explain the complainant’s injuries.

(v) The photographs of Doiron-Francis’s hands upon his arrest corroborate his evidence that he fractured a bone in the middle of the back of his hand, which is consistent with his hand taking part of the brunt of a bad fall.

(vi) The police could not find the complainant’s missing teeth. Doiron-Francis’s evidence that the complainant’s face was momentarily in the creek, where the moving water could have washed her teeth away, assists in explaining where her teeth may have gone.

(vii) The fact Doiron-Francis left the complainant alive supports his evidence he did not intend to kill her.

(viii) Given where Doiron-Francis left the complainant, it would have been next to impossible for anyone to have found her that evening. The fact he did web-searches for “Whitby news” later that night, supports his evidence that he believed that she had possibly gotten herself help. In other words, it supports his evidence that he knew she was alive when he left her.

(ix) Furthermore, Doiron-Francis only spent a total of a few minutes on web-searches in the first 24 hours following the offence, but thereafter was consistently doing web-searches over a number of days. This pattern of web-activity supports his testimony that he did not initially believe the offence was as serious as it was, but when he realized it was serious, he became all consumed by it.

[56] In summary, there are several reasons to believe Doiron-Francis’s testimony.

[57] However, his evidence was far from perfect. The Crown pointed out several inconsistencies in his version of events, including that (i) he initially said that he started filming the complainant before the offence, and then retracted that portion of his story; (ii) he said that she initiated physical contact at one point and later admitted that he hit her before she ever touched him; (iii) he said at one point the fall off the embankment was a clean fall and at another point, he claimed they hit things along the way; and (vi) he was inconsistent as to whether he could see the complainant’s face when they were in the creek. I do not put much weight on these alleged inconsistencies in assessing his overall credibility, as this was clearly a frenzied attack and these handful of inconsistencies were said in the course of Doiron-Francis’s long and rambling answers to many questions. I find, in fact that the details of his version of events were surprisingly consistent.

[58] The biggest issues I had with his testimony were as follows:

(i) His evidence that he followed the complainant for over 27 minutes to film her buttocks and yet never started filming or even tried closing the gap on her in order to film her, is implausible, especially considering the sun went down during this period, leaving him with no natural light;

(ii) The evidence that his phone battery died, such that he was forced to start filming the complainant at the same moment they arrived in an area with no houses or cameras, is too much of a coincidence to believe;

(iii) It is not plausible that Doiron-Francis believed he could get really close behind the complainant, close enough to film her buttocks jiggling, while the two of them were walking alone on a street at night, without her being aware of his presence;

(iv) His version of events does not explain how the complainant’s laced-up running shoe came off at the side of the road. The fact her shoe came off suggests there was more of a struggle than he described at the start of the attack;

(v) His evidence that he found his phone in the woods in the dark after the attack is unbelievable; and,

(vi) His testimony that he believed when he left the scene and even after, that it was not possible the complainant had died, is incredible and inconsistent with his own evidence. As mentioned above, he admitted that he did web-searches for “Whitby news” with the “hope” that the complainant had been able to get to the side of the road to get herself help. He implicitly admitted that he knew the complainant may have died.

[59] In light of these problems, I do not believe that Doiron-Francis is giving a full and accurate picture of what happened. I do not accept his version in its totality. In order for me to assess whether his testimony raises a reasonable doubt, I must consider the strength of the evidence that supports a finding that he formed the intent to kill.

[60] The Crown asks the court to rely on the following to prove that Doiron-Francis formed the requisite intent:

(1) Doiron-Francis himself admitted he was attempting to put the complainant in a “sleeper hold”, which he knew (at least at the time of trial) was potentially lethal.

(2) Doiron-Francis himself admitted that he needed to subdue the complainant long enough to collect his phone and get out of the area.

(3) Doiron-Francis would have wanted to ensure that the complainant could never identify him.

(4) The wounds were severe, and life threatening, and they revealed that the attack was focused on the complainant’s head.

(5) Doiron-Francis knew that the complainant suffered devasting injuries and never assisted her in getting medical attention.

(6) Within 24 hours of the offence, Doiron-Francis did murder-related web-searches on his phone.

(7) Doiron-Francis fled the area within a few days of the offence, and relocated to Ottawa.

(8) The story Doiron-Francis told Cameron is inconsistent with the story he told the court.

[61] There is no evidence that Doiron-Francis had an intention to kill prior to the assault, and therefore, the question for the court is whether these factors support the conclusion that Doiron-Francis formed an intent to kill during the attack itself.

[62] The forensic evidence of the scene strongly supports a finding that this was a frenzied attack that did not follow any pre-set plan. Accordingly, the evidence weighs against a finding that Doiron-Francis had time to consider his options or the potential consequences during the encounter. The Crown’s case did not support a finding that Doiron-Francis was thinking rationally throughout the attack. I recognize Doiron-Francis admitted he was trying to render the complainant unconscious long enough to get his phone, but that did not necessarily mean he was rationally considering his options and the consequences, as he was acting. He first tried to punch the complainant multiple times to get her to stop screaming and then jumped on her back and threw his arm around her neck. These actions seem to be consistent with reacting without thinking, and do not necessarily reflect a weighing of options and outcomes. It is also unclear that Doiron-Francis turned his mind to whether the complainant would be able to identify him; he notably made no effort to find his sandals before leaving the scene, and as a result, he left his DNA there and his father caught him walking into the house with no shoes on. I cannot conclude that Doiron-Francis rationally considered his options and the consequences, and I therefore cannot rely on his fear of being identified, or his need to subdue the complainant long enough to find his phone, to conclude he formed the intent to kill.

[63] As for the complainant’s injuries, the Crown did not have a specific theory as to how the injuries were inflicted, aside from some being the result of Doiron-Francis punching the complainant in the face. Even without Doiron-Francis’s testimony, it would be reasonable for the court to infer that some of the injuries to the complainant’s face were caused by a fall off the embankment onto the rocky ground below. Indeed, when the complainant was found her head was either on or beside a large rock. Moreover, Doiron Francis’s testimony on this issue is somewhat supported by the scar on the middle of the back of his hand. Although I could find that some of the complainant’s injuries were caused by punches, it would be speculation to determine how many, or which of her injuries were the result of intentional impact by Doiron-Francis.

[64] Doiron-Francis explained that he did not get the complainant medical attention after the offence, because he did not want to get caught. This explanation reveals his indifference to whether the complainant lived, but does not assist with whether he intended to kill her when he assaulted her. As for the murder related web-searches 24 hours after the offence, they are consistent with either him learning from the news that the complainant had been found and had life-threatening injuries, or with him believing 24 hours after the offence, she had still not been found and therefore was likely dead. They do not assist with his intentions at the time of the offence. With respect to Doiron-Francis’s efforts to move as far away from the offence as possible, they assist in finding that Doiron-Francis committed this heinous offence, but they do not assist with what was in his mind at the time he committed it.

[65] Finally, I do not agree that the story Doiron-Francis told Cameron was materially inconsistent with the version before the court. According to the two-minute summary of events Doiron-Francis told Cameron, he unprovokedly hit the complainant and continued to punch her several times in an attempt to get her to stop screaming. Although it seems he did not tell Cameron that the complainant and him fell off the side of an embankment, his story to Cameron that he “put” or “dragged” the complainant by the water, could be consistent – depending on how it was delivered by Doiron-Francis to Cameron - with Doiron-Francis’s evidence that after the fall off the embankment, he moved the complainant around to get her head out of the creek and by the side of the water.

[66] I find that there are too many questions with the Crown’s theory to find with confidence that Doiron-Francis formed the specific intent to kill. If I disbelieved Doiron-Francis’s version of events, I would have to speculate to determine how the injuries were inflicted. Especially when I consider the weaknesses with the Crown’s case together with the exculpatory evidence of Doiron-Francis, I am left with at least a reasonable doubt as to his intent. The Crown has not met its high onus on this issue.

[67] With respect to count one, I find that Doiron-Francis is not guilty of attempted murder, but, as admitted, guilty of the included offence of aggravated assault. To clarify, aggravated assault is not always an included offence of attempted murder. However, it is an included offence in the present case, in light of how the offence (as amended on consent during the trial) was particularized: R. v. Pelletier, 2012 ONCA 566.

(II) Sexual Assault

[68] I now turn to consider Doiron-Francis’s guilt with respect to sexual assault.

[69] When people think of sexual assault, they often think of rape. This is not a rape case. There is no evidence that the complainant was vaginally or anally penetrated during the attack, and the lack of injury to her lower genitals, as well as the lack of male DNA found on her, support a finding that she was not penetrated. However, sexual assault is much broader than rape. Indeed, Doiron-Francis may be guilty of sexual assault even if his intentions had no sexual element . Sexual assaults are not necessarily sexually motivated.

[70] The issue of whether an assault is a sexual assault does not turn on whether the accused intended to touch the complainant in a sexual way. The issue turns on whether the assault was objectively sexual in nature: R. v. Chase, [1987] 2 S.C.R. 293. In R. v. Ewanchuck, 1999 SCC 711, Major J. articulated the elements of sexual assault as follows:

The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively ; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, [1993] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293.

[71] Major J. gave the following further guidance with respect to the actus reus of sexual assault:

The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Criminal Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: see R. v. S. (P.L.), [1991] 1 S.C.R. 909.

[72] In the subsequent case of R. v. Larue, 2003 SCC 22, the Supreme Court found that since the accused in that case was on top of the complainant, when she was naked from the waist down, at the time of the assault, the assault was objectively sexual in nature. The circumstances that brought the parties to that point, including how the complainant got undressed, were “legally irrelevant” in assessing whether it was a sexual assault and, the Supreme Court found that the trial judge had erred in considering them.

[73] The following factors are relevant to whether the offence in the case at bar was objectively sexual in nature:

(i) Doiron-Francis followed the complainant, a woman walking alone, who was not carrying a purse or wearing anything of value, for over 27 minutes in the evening;

(ii) Doiron-Francis attacked the complainant when they were beside a wooded area, away from any houses or cameras;

(iii) The struggle started at the side of the road and moved into the woods;

(iv) During the struggle the complainant’s tight athletic pants and underwear were pulled down and left around one of her ankles;

(v) According to Doiron-Francis, the pants and underwear were initially pulled down when he grabbed them as he was falling;

(vi) According to Doiron-Francis, the pants and underwear came completely down when he grabbed them as she was kicking at his chest; and,

(vii) According to Doiron-Francis, after her pants and underwear were down around one ankle, he jumped on her back, such that his body was pressed up against her. He put his arm around her throat in an attempt to render her unconscious. They then rolled around together, while she was half naked, until they fell off the embankment.

[74] Irrespective of whether I rely on the Crown’s evidence alone, or rely on both the Crown’s evidence and the defence evidence together, there is no question that this offence had an objectively sexual element to it. The complainant’s sexual integrity was violated. To clarify, even if I believe Doiron-Francis’s testimony in its entirety, I still find that the Crown has met its onus. His evidence that he rolled around with the complainant, while he is on her back with his arm around her throat, and she was naked from the waist down, is sufficient in itself to prove the offence was objectively sexual, such that her sexual integrity was compromised. I have no reasonable doubt that the elements of sexual assault have been proven.

[75] The defence has already admitted that the offence amounted to an aggravated assault. I therefore find the Crown has proven there was an aggravated sexual assault and Doiron-Francis is guilty of count two.

Did Doiron-Francis Intend to Sexually Assault the Complainant?

[76] I have now addressed all the issues relevant to Doiron-Francis’s guilt for the offences before the court. However, the defence has asked the court to go further and address the issue of whether Doiron-Francis had a sexual motive to commit the offence. Although, as I have already explained, such an exercise is not necessary to assess Doiron-Francis’s guilt, it is helpful for the sentencing process. Given that both parties have made full submissions on whether the offence was sexually motivated, it makes sense to address the issue at this stage.

[77] Similar to at the trial stage, the burden at the sentencing stage is still on the Crown to prove the aggravating factors, such as whether Doiron-Francis had a sexual intent, beyond a reasonable doubt: R. v. Gardiner, [1982] 2 S.C.R. 368 and s.724(3) (e) of the Criminal Code.

[78] There are several reasons to find the attack was sexually motivated. First of all, as I have already noted, I have difficulty accepting Doiron-Francis’s evidence that he only intended to film the complainant’s buttocks. I have already noted several reasons for finding this area of his testimony implausible. Second, Doiron-Francis admitted that he was following the complainant to satisfy his perverse sexual desires. Third, Doiron-Francis admitted that he intentionally did not tell his father or his friend Cameron the real reason behind the attack. Fourth, the complainant’s husband noted what appeared to be handprints on the complainant’s inner thighs. Fifth and perhaps most significantly, the complainant’s pants, which were tight fitting, were removed by Doiron-Francis during the attack, along with her underwear. The Crown has presented a strong case regarding Doiron-Francis’s intentions. It is at least probable that Doiron-Francis’s intended to assault the complainant in a sexual way.

[79] There are two factors that weigh against a finding that it was a sexually motivated assault. First, is the fact that Doiron-Francis never did a sexual assault related web-search after the offence. Although he did multiple assault and aggravated assault, and even a couple of murder related searches, he never did a web-search related to sexual assault. I recognize that when he did a search for “assault charge Canada”, he clicked on a sexual assault related website. However, his evidence that he did so because at that point, the news was suggesting that police believed the attack was sexual in nature, is plausible. Given that the evidence supports a finding that Doiron-Francis never expected authorities to see what web-searches he did on his phone, the lack of sexual assault related web-searches is significant.

[80] The other factor weighing against a finding that it was a sexually motivated assault, is Doiron-Francis’s evidence itself. Although I find that Doiron-Francis’s evidence that he was only intending to film the complainant’s buttocks is difficult to believe, there was, as I mentioned earlier, a genuineness as to how he delivered his testimony. His evidence was also largely consistent, and it was corroborated in several respects. Thus, although I find his story objectively incredible, after listening to him, I am left with some doubt as to whether he is telling the truth.

[81] Having considered all the evidence on this issue, I find that although Doiron-Francis probably intended to assault the complainant in a sexual way, I am not sure he did. I am left with a reasonable doubt on this issue.

Conclusion

[82] To summarize, Doiron-Francis is not guilty of attempted murder, but guilty of aggravated assault and aggravated sexual assault; and for the purposes of sentencing, the Crown has failed to prove beyond a reasonable doubt that the offence was sexually motivated.

Released: January 19, 2024 Justice Verner