R. v. Kane, 2010 BCSC 1978

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kane , 2010 BCSC 1978 Date: 20101201 Docket: 24709-7 Registry: Vancouver Regina v. Carl Joseph Kane Ban on publication pursuant to ss. 486.4 and 486.5(1) of the Criminal Code, R.S.C. 1985, c. C-46 Before: The Honourable Mr. Justice Myers Oral Reasons for Judgment In Chambers Counsel for the Crown Jane Nascou Counsel for the Accused Brian Coleman, Q.C. Place and Date of Trial: Vancouver, B.C.

October 18-22, 2010 Place and Date of Judgment: Vancouver, B.C., December 1, 2010 [ 1 ] THE COURT: The accused is charged with sexually assaulting J.L. on March 20, 1998. In 2008, the RCMP in Halifax took a blood sample from Mr. Kane. They concluded that it matched DNA found on J.L.'s underwear shortly after the assault. Mr. Kane was indicted on September 13, 2010 . The only evidence adduced linking Mr. Kane to the alleged crime is the DNA. There is no dispute that J.L. was assaulted that day. What is disputed is whether the assault was a sexual one and whether Mr. Kane was the perpetrator. Mr.

Kane did not testify nor did he adduce any evidence challenging the DNA evidence. The continuity of exhibits is admitted. The Facts [ 2 ] In 1998 J.L. lived in the Champlain Heights area of Vancouver with her common law partner, D.S. There is a network of trails through the community. J.L. and D.S. frequently took a series of trails to a nearby neighbourhood pub, The Krazy Kangaroo, where they met other "regulars." Most of the trails on the route were concrete-surfaced and lit, but there was a shortcut that was on a dirt trail through bushes and unlit. [ 3 ] On the evening of March 20, 1998, J.L. was at the pub.

D.S. had been there, but left for home before J.L. J.L. walked back to her house following her usual route. When she was on the unlit dirt trail, she said that someone jumped out from the trees and grabbed her. She tried to get away but was knocked to the ground. She was able to get up and tried to escape. The man who was the attacker yelled what J.L. said was a martial arts cry and hit her. She fell to the ground. She said she was unconscious for a time. [ 4 ] At some point before losing consciousness, she was aware of the assailant telling her not to worry because he was not going to rape her.

As well, she was aware of her shoes coming off and the assailant saying that, "They were over there." When J.L. regained consciousness, she was fully clothed with her pants pulled up and shirt pulled down. She was able to get up, gather her purse, and make her way home. She could not find her shoes. Other than the grabbing and hitting which I described, J.L. does not remember any other touching. She remembers nothing else about the assault. Nothing had been taken from her purse. J.L. said the assailant seemed husky and was two to three inches taller than her five-foot-five inches. He did not have an accent.

She said she did not get a good enough look at the assailant to be able to identify him. [ 5 ] J.L. returned home and, after going to the bathroom, went to the bedroom where D.S. was already asleep. She told him she had been attacked. Around midnight, D.S. called 911. The police arrived approximately 15 minutes later. J.L. explained the area where she was attacked and D.S. guided the police to it. With the later assistance of a dog, the police located J.L.'s shoes. [ 6 ] J.L. was taken to the hospital.

She suffered bruising and cuts around her right eye, abrasions to the side of her forehead, a laceration on her head, and bruising on her chest. She also suffered several scratches. Branches and dirt were in her hair. J.L. was given a pelvic exam for signs of sexual abuse. No sign of semen was found. She had a superficial abrasion near the opening of her vagina which the examining nurse noted as being "consistent with forced trauma." In her cross-examination, the nurse said that the abrasion could have been caused by rough consensual intercourse. J.L.'s underwear had a stain on it which was analysed.

It was determined that this was semen. J.L.'s shirt had bloodstains which were determined to be from her own blood. I will return to the semen sample later. [ 7 ] There is no possibility of J.L. confusing or misidentifying her underwear since they were made for her by her mother. [ 8 ] The police did not consider D.S. to be a suspect. J.L. not mention him as the assailant, and the police officers who came to

the home did not notice any sign of him having been in a fight, such as abrasions or dirt on his hands. The DNA Evidence [ 9 ] At the RCMP laboratory two people are involved in DNA testing and reporting. An analyst extracts the DNA , if any, and then tests it in order to obtain a profile. The raw data is then sent to a reporting scientist for analysis and reporting. This was the case in 1998 and remains so through to today. The 1998 report concluded that: The DNA typing profile obtained in the questioned sample, Exhibit 2 (stain indicative of semen) is of mixed origin.

The female component is consistent with having originated from the same source as Exhibit 1-1, [J.L.]. A DNA profile was obtained from the male component. This profile can be compared to any known sample (blood/saliva) submitted from an accused. [ 10 ] Both people involved in the process in 1998 were called as witnesses. No issue was raised as to the accuracy of the DNA profile.

The only issue raised by the accused in cross-examination and argument with respect to the analysis is whether it was from semen as opposed to, for example, skin. [ 11 ] As I said at the outset of these reasons, in 2008, some 10 years after the attack, the RCMP in Halifax took a blood sample from Mr. Kane. The profile was sent to the Vancouver laboratory where reporting scientist Mr. Beevers compared it to the profile taken from J.L.'s underwear in 1998. In his report, Mr.

Beevers concluded: The male component of the mixed DNA typing profile obtained from Exhibit 2A (panty stain indicative of semen) matches that of the known sample, Exhibit 1 [and then in parenthesis] (Kane, C.). The estimated probability of selecting an unrelated individual at random in the Canadian Caucasian population with the same profile is one in 930 billion. [ 12 ] In his oral evidence, Mr. Beevers explained the database. It contains profiles from 164 Caucasian individuals. There are databases of other racial groups.

The point of selecting a database is not to match the race of a suspect, but to select a database which describes the majority of the population. This is so because the statistic which is being sought is the odds of someone randomly selected matching a known profile. Mr. Beevers said the vast majority of the population in Canada was Caucasian and, therefore, that was the appropriate database to use. Mr. Beevers commented on the adequacy of the database. Mr.

Beevers was not a population geneticist himself and said that it had been checked by a population geneticist and that the database would give a conservative estimate of the frequency of the DNA profile. Mr. Beevers' opinion specified that the random probability match, one in 930 billion, was with respect to an unrelated individual. This, he explained, is because identical twins have matching DNA and brothers can have similar DNA. [ 13 ] Both of the people responsible for the 1998 analysis testified as to how it was determined that the DNA obtained from the sample was semen. Mr. Beevers also explained the process.

In order to obtain DNA the cells have to be broken open. Sperm cells are the most difficult to break open. In order to do that, the cells are put through three processes using gradually increasing harsher detergents. After each stage, the cells which remain, i.e., those which have not ruptured, are collected and put through the next process. The fact that the cells survived the first two treatments indicates that they are sperm cells. The DNA extracted at the third process or fraction was 75 per cent male as opposed to 15 per cent after the second fraction. Mr.

Beevers said the only explanation for that was that it was from semen. Analysis [ 14 ] There is no issue that J.L. was assaulted. The only issues are whether the Mr. Kane was the assailant and whether the assault was sexual. [ 15 ] Mr. Kane raises two challenges to Mr. Beevers' DNA opinion. First, he says that Mr. Beevers cannot testify with respect to the population database. Rather, the evidence, he argues, must be introduced by a population geneticist. Second, Mr. Kane argues that the Crown ought to have proved that he did not have a brother or twin brother. Given that it did not do so, Mr.

Beevers' random match profile is not applicable. [ 16 ] I will deal with each of these arguments in turn. [ 17 ] First, Mr. Beevers' reliance on the population database. This very question was addressed by the Saskatchewan Court of Appeal in R. v. Fisher , 2003 SKCA 90 , leave denied by the Supreme Court of Canada, in which a trial judge admitted evidence very similar to that at issue here by an expert with essentially the same qualifications as that of Mr. Beevers. The court stated: [19] On the basis of the principles set out in these authorities, the judge made no error in allowing Ms.

Charland to testify respecting the random match statistics. Given the evidence of her training as a Forensic DNA Analyst, including training to calculate random match probabilities, and her experience, including the fact that she has given such evidence in Canadian courts over 20 times, it was open to the judge to find that she had sufficient skill and knowledge relating to forensic DNA analysis and profiling to qualify her as someone having special knowledge going beyond that of the trier of fact. When the judge made that decision, the evidence became admissible.

Deficiencies in the knowledge of the witness such as lack of more training in statistics, lack of personal knowledge of the compilation of the database, and reliance upon the studies of others, went to the weight to be given to the evidence, not to its admissibility. The defence very skilfully brought out all of these deficiencies in the cross-examination of Ms. Charland. It was for the jury to decide the weight to be given to the evidence in the light of those deficiencies. [20] Furthermore, the defence was not left helpless in the circumstances.

It could have led its own expert evidence to contradict that of the Crown if it believed the Crown experts’ evidence to be wrong or misleading. It did not do so. The evidence was that a sufficient amount of the DNA samples tested was left to allow for independent testing by the defence to check the results reached by the Crown witnesses. There is no evidence that it did so. [ 18 ] While I am not bound by this decision, it is persuasive. Further, it appears to me that it is in accordance with the general approach recently taken by the British Columbia Court of Appeal in Mazur v.

Lucas , 2010 BCCA 473 , in which the court stated:

[40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsayevidence as follows: • An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include hisown intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises,information from others – this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835) • An expert may rely on hearsay.

One common example in a personal injury context would be the observations of a radiologistcontained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on theradiologist’s report. • The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlyingassumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of thehearsay, where that hearsay is not proven by other admissible evidence.

Where the hearsay evidence (such as the opinion of otherphysicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability. • The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw theevidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, butrather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury. [19] I conclude that Mr.

Beevers' evidence is admissible. I also accept the evidence. As Fisher and the cases cited in itdemonstrate, proving a statistical probability of a match using the database through one expert has been accepted in several instances inCanada. In the case at bar, no challenge was made to the credibility or reliability of the evidence. [20] The second issue raised by Mr. Kane is the failure of the Crown to prove that he did not have a brother or twin brother. Onceagain, this issue was addressed by the Saskatchewan Court of Appeal in R. v. McLeod, 2010 SKCA 43.

As in the case at bar, the onlylink to the accused was DNA evidence. In rejecting the same argument made by Mr. Kane, the Court of Appeal referred to twodecisions of the English Court of Appeal, one in which the accused adduced evidence of a brother, the other in which he did not: [30] The problem for Mr. McLeod in this case is that there is no evidence to suggest he has a brother (or any other blood relative forthat matter) and, more specifically, no evidence to suggest a brother or a blood relative might be a suspect in the murder of the victim. Factually, therefore, this appeal is quite different from R. v.

Watters. Indeed, the better reference point is R. v. Adams, [1996] 2 Cr.App. R. 467 (C.A.). It was a rape case where the prosecution’s position rested entirely on DNA evidence. The Court of Appealdismissed a defence argument based on the fact Mr. Adams had a brother. It said this at p. 470: Mr. Thwaites contended, somewhat faintly, that, as [Mr. Adams] has a brother of the full blood and as there was evidence that the chanceof a full brother having the same nine DNA bands is one in 220, this weakened the DNA evidence against [Mr. Adams].

But, as therewas no evidence as to the brother’s actual DNA profile nor any suggestion that he might have committed the offence, the point leadsnowhere and we disregard it. [31] In short, while there appears to be some foundation of theory or principle underpinning this leg of Mr. McLeod’s submission, itis of no consequence in the absence of at least some evidence giving it practical shape and form. Because there is no such evidence, hisargument amounts to a suggestion the trial judge should have speculated about the possibility of a blood relative being involved in thecrime.

The judge made no error in declining to do that. [32] In the end, I am not persuaded by Mr. McLeod’s argument on this point. [21] I agree with the conclusion in those cases that it was not up to the Crown to adduce evidence of the accused not having abrother. [22] I conclude that the Crown has established beyond a reasonable doubt that Mr. Kane was the assailant. [23] The final issue was whether the assault was sexual. Regina v. Chase, (SCC), [1987] 2 S.C.R. 293, was thefirst opportunity the Supreme Court of Canada had to deal with the then new offence of sexual assault. At page 302, Mr.

JusticeMcIntyre writing for the court set out some of the indicia of the offence: Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within any oneof the

definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that thesexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexualnature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to areasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269).

The part of the body touched, the nature of the contact, the situationin which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, includingthreats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime in Old Battles: DefinitionalProblems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to theextent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual.

If the motive of theaccused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether theconduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered,the importance of which will vary depending on the circumstances. [24] Mr. Justice McIntyre went on to conclude that the offence was one of general intent. [25] I have accepted Mr. Beevers' evidence and found beyond a reasonable doubt that the DNA on the underwear was from Mr.Kane’s semen.

There is no possible explanation for this unless the assault was a sexual one.

Conclusion [ 26 ] This case is what has been referred to as a “cold hit case”; namely, one in which there is no link to the accused other than a DNA match which has come up through the use of a DNA databank. DNA evidence is circumstantial. However, the courts have noted the power of DNA evidence. For example, in R. v. S.A.B. , 2001 SCC 60 , the Supreme Court of Canada stated: The enormous utility and power of DNA evidence as an investigative tool has been documented both by the trial judge in Brighteyes , supra , and by the Ontario Court of Appeal in F.(S.) , supra .

Indeed, “a DNA match will in many cases, with virtual certainty, eliminate the person as a suspect … [or] provide evidence that it was his bodily substance(

s) that was found at one or more of the places set out in s. 487.05(1)(b)” … This is an identification tool of great value to the criminal process. [ 27 ] In order to convict on the basis of circumstantial evidence, the trier of fact must be convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts: see R. v. Butler , 2007 BCCA 526 . The assault of J.L. is not in issue. The Crown has proven beyond a reasonable doubt that Mr. Kane's DNA was on J.L.'s underwear and that that DNA was from his semen.

The only inference to be drawn from that is that Mr. Kane was the assailant and, as I have said above, that the assault was a sexual one. [ 28 ] I therefore find Mr. Kane guilty of sexual assault. “E.M. MYERS, J.”