R. v. Ineak Padluq, 2012 NUCJ 06

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Ineak Padluq, 2012 NUCJ 06 Date: 20120503 Docket: 09-09-27-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ineak Padluq ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Amy Porteous Counsel (Accused): Malcolm Kempt Location Heard: Iqaluit, Nunavut Date Heard: March 7, 2012 Matters: Criminal Code, s. 276 ; s. 276.2 ; voir dire hearing REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

Restriction on publication: Publication ban lifted, due to completion of trial, effective 09/29/2014. I. INTRODUCTION [ 1 ] Ineak Padluq is charged with the sexual assault of A.T., arising out of an incident in Kimmirut in 2009. An application has been brought on his behalf for leave to cross-examine A.T. on her prior sexual history. [ 2 ]

Section 276 of the Criminal Code prevents any evidence from being adduced that the complaint has engaged in any form of sexual activity, other than the sexual activity that forms the subject matter of the trial, unless the Court is satisfied on a balance of probabilities that this evidence is:

a) of specific instances of sexual activity;

b) is relevant to an issue at trial, and;

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [ 3 ] The Defendant wishes to have a DNA report, Exhibit 2 on this voir dire, declared admissible for trial. He proposes to show that a DNA profile attributable to a male person other than the Defendant was found in the crotch area of the complainant’s underwear worn during the alleged assault.

Admissibility of this evidence is sought despite the Crown’s readiness to admit at trial that no DNA was found in the course of the forensic investigation linking the Defendant to the alleged attack. [ 4 ] The Defendant then wishes to cross-examine the complainant on her previous sexual history. It is argued that the DNA evidence potentially contradicts a suggestion that the complainant told medical personnel that she had had no sexual relations with any other person for a period of two weeks preceding the alleged sexual assault.

It is said that the evidence obtained through cross-examination would be both relevant and probative on the issue of credibility that looms large at trial. II. EVIDENCE A. The factual context [ 5 ] In the morning of January 30, 2009, the complainant attends the Kimmirut RCMP detachment and gives the first of three statements implicating the accused in the commission of a sexual assault during the night. In this first statement, the complainant alleges that the accused forced full sexual intercourse upon her. The accused and the complainant were at a party. All became intoxicated.

The complainant passed out and awoke to find the accused having sexual intercourse with her. There were no independent witnesses to the alleged sexual assault. [ 6 ] After giving police this first statement, the complainant is taken to the nursing station where clothing is seized as potential evidence. A rape kit is then administered by medical personnel.

On a form used by the attending medical personnel (voir dire Exhibit 3), an entry records that the complainant had no sexual intercourse with any other person during the two weeks preceding the investigation. [ 7 ] On February 6, 2010, the complainant gives a second statement to the police. She says that she really does not remember the accused having full sexual intercourse with her. She does recall the accused holding her down and digitally penetrating her vagina.

The complainant says that her initial claim of full sexual intercourse was made in anger in the hope of getting the accused into more trouble. [ 8 ] In a 3rd statement given to police on July 8, 2010, the complainant is unable to explain how or why an unknown male’s DNA profile, a profile not matching the accused’s DNA profile, was found on the crotch of her underwear.

[ 9 ] For the purpose of this voir dire, the Defence confirms that there is no real issue about the complainant’s ability to recognize the Defendant. There is no suggestion that the events unfolded in poor lighting, or that the complainant lacked either the opportunity or the ability to properly identify the Defendant as the perpetrator. The Defendant was known to the complainant. The defence theory is that the alleged incident did not happen as alleged or at all. This is not a case where a Defendant claims an honest though mistaken identification of the perpetrator by the complainant. B.

The forensic evidence - the Fast Blue screening test [ 10 ] Three exhibits seized during the administration of the rape kit tested positive for semen during this first screening test. These Exhibits included two vaginal swabs and an area in the crotch of the complainant’s underwear. [ 11 ] The Fast Blue screening test can yield false positives in a number of circumstances. It is common for the test to react positively to vaginal fluid, particularly where there is a yeast or other bacteriological infection in the vagina.

The leakage of vaginal fluid onto the crotch area of underwear can similarly produce a positive reaction. [ 12 ] Positive reactions can also be caused by fecal material, some vegetable material and some contraceptive foams or jellies. C. The PSA or P30 screening test [ 13 ] The three exhibits that tested positive for semen during the Fast Blue Screening test were retested using the PSA screening test. This test yields fewer false positives than the Fast Blue process.

False positives for PSA screening can be caused by amniotic fluid, human breast milk, male urine, and vaginal fluid particularly in individuals taking anti-depressants or hormone replacement therapy. [ 14 ] All three exhibits tested negative for the presence of semen on this second screening test. D. Confirmatory testing by microscopic examination [ 15 ] All three exhibits were examined microscopically to determine whether sperm cells could be observed. None were detected. The forensic laboratory was consequently unable to confirm the presence of semen on these three exhibits.

The forensic analyst concluded that the false positives initially appearing on the three exhibits during the Fast Blue test were probably caused by proteins found in the complainant’s vaginal fluid. E. DNA analysis [ 16 ] All Exhibits that had initially tested positive during the Fast Blue screening process were also subjected to forensic DNA analysis. The two vaginal swabs gave a DNA profile that matched that of the complainant.

There was no male DNA profile found. [ 17 ] The crotch area of the complainant’s underwear disclosed a DNA profile of mixed origin that was consistent with having originated from two individuals, namely the complainant and another unknown male. The male DNA typing profile was not consistent with that obtained from the accused. F. DNA transfer [ 18 ] Forensic science is unable to determine with certainty when or how the male DNA found on the underwear was transferred. The male DNA could have been deposited weeks or months earlier.

[ 19 ] There are a number of ways in which a DNA transfer can occur. [ 20 ] Male DNA originating from semen can be transferred directly to clothing as a result of sexual contact. DNA can also be transferred to clothing by coughing or spitting on the clothing in a non-sexual context. It can be transferred under certain conditions by manual handling. Skin cells containing DNA may be left behind on objects being handled. DNA can also be transferred by clothing coming into contact with other clothing containing DNA.

Such a transfer may occur in the close proximity of a laundry hamper, or by washing clothing with objects already containing the other DNA. [ 21 ] Forensic science is unable to confirm how the trace amount of male DNA came to be transferred to the underwear.

Forensic science is unable to confirm that the trace amount of male DNA found in the crotch area of the complainant’s underwear originated from semen, but this could not be excluded as a possibility. [ 22 ] While the location of the DNA on the crotch of the underwear and the small amount of DNA “best fits” an inference that the DNA transfer may have been the result of a semen stain diluted by at least one washing, this cannot be confirmed with any certainty. G. DNA and Digital penetration [ 23 ] Very little DNA is transferred through digital penetration.

There is usually so much DNA from the vagina that this DNA tends to mask or overwhelm the small amount of DNA deposited by

an act of digital penetration. While it is possible to obtain a DNA typing profile from digital penetration on underwear worn when the act of digital penetration occurs, this is by no means certain to result. The absence of any DNA profile does not necessarily give rise to an inference that digital penetration may not have occurred as alleged. III. ANALYSIS A.

The Defence argument [ 24 ] The Defence argument on this application appears to be predicated upon the following assumptions of fact: 1) That the complainant had indicated to medical personnel that she had had no sexual intercourse for a period of two weeks preceding the administration of the rape kit by medical personnel; 2) That the trace amounts of male DNA found in the crotch of the complainant’s underwear indicates that the complainant might have had sexual intercourse with another male person; 3) That this act of sexual intercourse might have occurred within two weeks of the sexual assault investigation commencing; 4) That the DNA evidence is potentially inconsistent with the complainant’s assertion of sexual abstinence during this two week period; 5) That this potential inconsistency is relevant and probative to the trier of fact’s determination of the complainant’s overall credibility as a witness; 6) That the DNA report is supportive of, and lends strength to, the Defendant’s assertion that no sexual assault in the form of a digital penetration of the complainant’s vagina occurred.

B. Analysis

[ 25 ] The Crown is not alleging that the accused had full sexual intercourse with the complainant during the alleged sexual assault. Whether the complainant had sexual intercourse with another male at a time preceding the alleged incident with the accused is entirely irrelevant to the matter to be decided at trial. [ 26 ] The Crown is prepared to admit, for the purpose of trial, that there is no DNA evidence of any kind linking the accused to the alleged sexual assault.

The DNA report would not need to be tendered and explained through expert evidence as a consequence of this admission. [ 27 ] The Defence already has the means to challenge the complainant’s credibility without straying into the area prohibited by s. 276 of the Criminal Code . The complainant initially alleged

an act of sexual intercourse and then subsequently claimed no memory of this activity occurring. The Defense may cross-examine the complainant at length on any apparent conflict between the first statement of January 30, 2009, and the second statement of February 6, 2010. [ 28 ] The expert evidence heard in the course of this voir dire does not support the propositions being advanced by the Defence as a basis for challenging the credibility of the complainant. [ 29 ] There is insufficient evidence to determine what substance containing male DNA may have caused the DNA contamination of the complainant’s underwear.

The trace amounts of male DNA found in the crotch of the complainant’s underwear may have been transferred to the garment directly through the deposit of semen during an earlier act of sexual intercourse, but this cannot be confirmed by forensic science. The uncontradicted expert evidence suggests that there are other means by which the underwear may have become contaminated with male DNA. These other possibilities could not be excluded.

There is consequently insufficient evidence to conclude that the trace male DNA on the underwear is in fact evidence of sexual activity. [ 30 ] There is also insufficient evidence to establish that if sexual activity occurred at all, it necessarily occurred within a period of two weeks preceding the sexual assault investigation. Forensic science cannot confirm when the transfer of male DNA occurred. Expert evidence suggests that this transfer may have occurred some weeks or even months earlier.

The DNA evidence cannot consequently be used to contradict the complainant’s assertion of sexual abstinence during the two weeks preceding the alleged sexual assault. [ 31 ] The DNA report does not strengthen the Defendant’s assertion that the events described by the complainant did not occur as alleged or at all. There is no evidence to link the trace male DNA to the incident before the Court.

The expert evidence suggests that while it is theoretically possible for DNA to be left behind as a result of a digital penetration of a complainant’s vagina, the absence of any detectable DNA does not necessarily support the conclusion that digital penetration did not in fact occur. There may be no DNA detectable from this type of activity as a result of the complainant’s DNA overwhelming any trace DNA left behind by the digital penetration of the vagina. IV.

CONCLUSION [ 32 ] In determining the issue of admissibility of evidence on this voir dire, the Court has given anxious consideration to all of the factors enumerated by Parliament in section 276(3) of the Criminal Code . The right of the Defendant to a fair trial must be weighed and balanced with other considerations including: (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

d) the need to remove from the fact-finding process any discriminatory belief or bias; ... (

f) the potential prejudice to the complainant’s personal dignity and right of privacy; (

g) the right of the complainant to personal security and to the full protection and benefit of the law.

[ 33 ] The probative value of the evidence tendered by the applicant in this case cannot be assessed in a factual vacuum. The value of this type of evidence lies in its ability to help with the determination of a live issue that must ultimately be decided by the trier of fact. The legal issues in this trial turn on the factual allegations found in the indictment and on any defense reasonably anticipated to arise at trial.

Of particular concern in this voir dire is whether there is any reasonable prospect that the evidence of prior sexual history will assist the trier of fact in arriving at a just determination in this case. [ 34 ] The Court’s position on this voir dire is driven by context. This is not a case where the Defence intends to advance a claim that the complainant has honestly though mistakenly identified the Defendant as the perpetrator.

If identity of the perpetrator was a concern, the evidence related to another male’s DNA being found in the crotch of the complainant’s underwear would be potentially relevant to a determination of the identity of the perpetrator. [ 35 ] In the circumstances of this case, the proposed evidence is not directly relevant to the allegations being advanced by the Crown. The applicant has not proven on the balance of probabilities that the proposed evidence relates to specific instances of sexual activity if indeed sexual activity occurred at all.

The evidence of prior sexual history has great potential in this case to distract and confuse the trier of fact with a multiplicity of issues unrelated to the matter at hand. It has great potential to consume significant amounts of court time on peripheral issues. [ 36 ] Given the anticipated factual issues in this case, the Court finds that the Defendant’s right to make full answer and defence would not be affected by the exclusion of this type of evidence at trial.

The Defendant will have every opportunity to challenge the credibility of the complainant through cross-examination on discrepancies arising from the complainant’s statements to the police. [ 37 ] The Court finds that the evidence being advanced by the applicant has tenuous probative value. The limited value of this evidence is substantially outweighed by the danger of prejudice to the proper administration of justice. A. Rulings [ 38 ] In the result, the Defense application to have the DNA report admitted at trial is denied.

This ruling is conditional upon the Crown admitting for trial purposes that no DNA was found linking the accused to the allegations of the complainant. [ 39 ] The Defense application to allow evidence to be tendered on the issue of the complainant’s prior sexual history is also denied. Dated at the City of Iqaluit this 3rd day of May, 2012 _______________________ Mr. Justice Robert Kilpatrick Nunavut Court of Justice