R. v. Hopkins, 2022 NLSC 102

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hopkins , 2022 NLSC 102 Date : June 17, 2022 Docket : 202101G1535 Her Majesty The Queen v. Stephen Hopkins Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Donald H. Burrage Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: May 2, 3, 4, 5, 10, 11, 12, 16, 26, 27, 30, 31 June 1, 2, 6, 7, 2022 Appearances: Jennifer E. Standen Appearing on behalf of the Crown Stephen Hopkins Appearing on his own behalf John D. Brooks, Q.C. Appearing as Amicus Curiae

Robert S. Roach Appearing to cross-examine the complainant and to make final submissions regarding the complainant’s evidence Authorities Cited: STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] In the order in which they appear on the Indictment, Stephen Hopkins stands charged with sexual assault, break and enter, forcible confinement, assault, uttering threats to damage property and breach of probation, contrary to the Criminal Code , R.S.C. 1985, c.

C-46 . [1] All offences are alleged to have occurred on the morning of 18 September 2020 in the residence of the complainant, M.S., at T[…] Street, St. John’s, NL. VERDICT [ 2 ] For the reasons that follow, I am satisfied that the Crown has proven the elements of each of the foregoing offences beyond a reasonable doubt and thus find Stephen Hopkins guilty, as charged, of all counts on the Indictment. [ 3 ] Specifically, I find that on the morning of 18 September 2020, at approximately 9 a.m., Mr.

Hopkins entered the home of M.S., who was then 17 years old, without her consent, under the pretense of wanting a glass of water, but in truth with the intention of committing a sexual assault. Once inside the porch, he pushed her to the floor and forcibly removed her sweatpants and underwear. He then carried M.S. to the upstairs, confining her, where in both her and her mother’s bedrooms he slapped her and sexually assaulted her, by placing his hand and mouth on her vagina, without her consent. When M.S. would not submit, Mr. Hopkins eventually gave up and left, but not before threatening to burn the house down.

The threat was intended to be taken seriously and to intimidate. Mr. Hopkins was on probation at the time, which included the condition that he keep the peace and be of good behaviour. [ 4 ] Whatever Mr. Hopkins’ original plans for that fateful day, his chance encounter with M.S., alone at home and vulnerable, presented an “opportunity” he could not resist. [ 5 ] To this finding I am compelled to add, that, contrary to the assertions of Mr.

Hopkins, there was before me no evidence of collusion, bias, or other misconduct on the part of the Royal Newfoundland Constabulary (“RNC”) in their arrest and detention of Mr. Hopkins and investigation into this case. Similarly, I could find nothing to support Mr. Hopkins’ assertion of evidence tampering and am satisfied that continuity was maintained with respect to all exhibits. What Mr.

Hopkins perceived to be a conspiracy and a bias against him, was nothing more than members of the RNC appropriately and professionally carrying out their duties. [ 6 ] Turning now to the evidence upon which I base the foregoing conclusions. the evidence The Evidence of M.S. [ 7 ] On 18 September 2020, M.S. was 17 years old. She had moved into T[…] Street, together with her mother and sister, a few days prior. She was at home alone, waiting for her mother’s friend to pick her up for a doctor’s appointment at 10:00 a.m.

It was a nice day and at approximately 9:00 a.m. she was sitting on her front step with a coffee, when a stranger approached, pushing a shopping cart of recyclables. She was able to describe the stranger and subsequently identify him as Mr. Hopkins. After an exchange of pleasantries, he asked for a glass of water. At this point he was still on the road. M.S. went into the house to get the water and closed the door to prevent her dog, a Saint Bernard, from escaping. When she returned Mr. Hopkins was at the front door. [ 8 ] After asking if her dog was friendly and if she was home alone, Mr.

Hopkins finished the water in one gulp, pushed his way in, and shut the door. It was at this point that M.S. became nervous, erroneously believing that she was about to be robbed. Mr. Hopkins then pushed her onto the floor of the porch and proceeded to remove her sweat pants and panties. He had his clothes, on but his penis was exposed. While she yelled and screamed and struggled to get away, he threw her over his shoulder and carried her upstairs and into her bedroom. She was banging her fists wherever she could and thought that during the struggle she bit his upper arm. [ 9 ] At one point Mr.

Hopkins paused to catch his breath, whereupon M.S. took the opportunity to run out of her bedroom. Mr. Hopkins was in hot pursuit, however, and now succeeded in pushing her onto her mother’s bed in another room across the hall. His fingers were touching her vagina, inside “a little bit”, and at one point he put his mouth there. She attempted to cover her vagina with her hands and on two occasions he slapped her across the side of her face, telling her to be quiet. [ 10 ] She continued to struggle and eventually Mr. Hopkins exclaimed, “Fuck I can’t”. From this M.S. understood that he was going to leave.

She was right, but while at the front door he stopped and threatened, “don’t tell anyone or I’ll burn your fucking house down.” She pulled her sweatpants on in a hurry, leaving her underwear where it lay in the porch, ran outside, called 911 and texted her mom’s

friend to come quick. At this point she was crying, screaming and in shock. As Mr. Hopkins left, her dog managed to escape the house. [ 11 ] Mr. Hopkins was self-represented during his trial. For this reason, pursuant to an Order of this court, M.S. was cross-examined by legal counsel appointed by the Attorney General. At the invitation of the Court, this same counsel appeared during final submissions, to argue on Mr. Hopkins’ behalf regarding the evidence of M.S. [ 12 ] Notwithstanding the able cross-examination of counsel, I found M.S. to be a most credible and forthright witness.

She was not combative and at all times answered the questions put to her, directly, and without embellishment. For example, when shown pictures of her and her mother’s bed in a disheveled state, she freely acknowledged that it was possible that the beds had not been made from the night before. [ 13 ] During cross-examination it was pointed out that in her statement to police M.S. said that Mr. Hopkins pushed through her bedroom door to go after her, as she fled the room, when in fact the door opens inward.

However, when shown a photo of the door, she freely acknowledged the error and attributed the discrepancy to her adrenalin at the moment. Weighed against the balance of her testimony, I do not regard this discrepancy as material and it is not such as to impugn her credibility. [ 14 ] Nor am I moved by the suggestion that Mr. Hopkins could not carry M.S. up the stairs, and that if he did so, there would be damage to the walls. Mr. Hopkins is approximately 6 feet tall and would be more than capable of carrying out this task.

The absence of damage to the walls is a neutral fact. [ 15 ] Finally, the suggestion that M.S. could have run back down the stairs, rather than into her mother’s bedroom, is stereotypical reasoning on how victims of sexual assault might be expected to react. M.S. was by now in a state of panic, and by her own admission, “not thinking straight.” [ 16 ] The events as related by M.S. establish the elements of the offences for which Mr. Hopkins is charged. As I accept her testimony, without reservation, had no other evidence been called, this alone would be enough to convict Mr. Hopkins. [ 17 ] But, there was more.

The Eye Witnesses [ 18 ] Several eyewitnesses, neighbours of M.S., described an individual matching the description of Mr. Hopkins in the vicinity of T[…] Street on the morning in question. [ 19 ] Specifically, at approximately 8:40 a.m., Mr. Ambrose Bennett arrived at his residence at X2 T[...] Street, from a visit to a plumbing store. While waiting for the garbage truck (as it was garbage day) he looked across the street and first saw a shopping cart containing recyclables, parked in front of X1 T[...] Street. He then saw the front door open and a man whom he did not recognize exit.

He described this man as approximately 5’6” tall, 200 lbs. with big black bushy hair and a beard. The man left with the cart, although he could not say in which direction. Shortly thereafter a girl (M.S.) came out “crying and hysterical”. [ 20 ] At the time, Mr. Andrew Coffin was a neighbour of M.S., living at X3 T[...] Street. He returned home at approximately 9:00 a.m., after dropping his wife off at an appointment. Upon arriving, he witnessed a large dog on the loose and a girl (M.S.) at the end of his driveway on her phone, crying and almost hysterical.

After being given a description by M.S. of her alleged assailant, he looked down T[…] Street and saw a darker complexioned man approximately 6 feet tall with black curly hair, in a long grey jacket, pushing a shopping cart. [ 21 ] On 18 September 2020 Mr. Reginald Forsey lived at X4 T[...] Street. Sometime between 8:45 a.m. and 9:00 a.m. he went outside to move his garbage container. When doing so, he observed a man standing in front of X1 T[...] Street with a shopping cart full of recyclables.

The man, who he described as 5’10” tall, with a thick black beard and afro style hair, turned and looked at him while “fixing his clothes.” He then left and walked up T[…] Street towards Birmingham Street [2] and went out of sight. [ 22 ] In addition to the neighbours, Constable Shane Roberts testified that he was familiar with Mr. Hopkins, as the two had attended high school together. Around 8:30 a.m. on the morning of 18 September 2020, he had seen Mr. Hopkins pushing a shopping cart on Birmingham Street.

After subsequently receiving a call from dispatch regarding an alleged sexual assault, involving a black male with an afro, wearing a grey shirt and pushing a shopping cart, he located Mr. Hopkins at the corner of Birmingham Street and Frecker Drive, a short walk from T[…] Street. He read Mr. Hopkins his rights and caution and placed him under arrest. The time was 9:11 a.m. [ 23 ] Constable Roberts certainly had reasonable and probable grounds to arrest Mr. Hopkins based on the description provided by M.S. of her alleged assailant. Further, I am satisfied that Mr.

Hopkins was properly provided with his rights and caution at the time and exercised his right to counsel. [ 24 ] While I recognize the potential frailties of eyewitness accounts, there can be no doubt that Mr. Hopkins was the individual described by the neighbours of M.S. That there would be two persons of the same description, pushing a shopping cart full of recyclables, is more than improbable. Thus, I am satisfied that it was Mr. Hopkins who Mr. Bennett witnessed leaving the residence of M.S. To this conclusion, I would add that there is no evidence to impugn the cognitive function or the credibility of Mr.

Bennett’s evidence, as argued by Mr. Hopkins. [ 25 ] Of course, taken in isolation, this evidence does not mean that Mr. Hopkins was up to no good. But it does establish opportunity and at the very least corroborates the evidence of M.S., that Mr. Hopkins was in her residence on the morning in question. Reaction of M.S. [ 26 ] The same neighbours universally described M.S. outside her residence after Mr. Hopkins left and that she was crying and visibly upset. This description is consistent with that provided by the RNC officers who first attended the scene.

[ 27 ] Constable Evan Farrell was the first RNC officer to arrive. He observed a young female (M.S.) on the front lawn of X1 T[...] Street who was upset and crying, with her makeup running. He entered X1 T[...] Street to secure the scene. When he did he saw an empty glass on the floor and

article of clothing (he wasn’t sure what), in the porch. He observed a “small scratch” on M.S.’s left shoulder. [ 28 ] Constable Megan Normore was the next RNC officer to arrive. She observed a distraught female (M.S.) on the sidewalk crying, with “tears running down her face” and makeup a mess. She tried to calm her down and with Constable Farrell’s approval entered X1 T[...] Street with her to obtain some fresh clothing. Upon entering, she observed a scrunched up mat with a pair of blue female underwear.

On the bottom step leading upstairs was an empty drinking glass. [ 29 ] After retrieving a change of clothes Constable Normore transported M.S. to the Janeway Hospital, where she was examined by Dr. Jennifer O’Dea, using the sexual assault evidence kit. Here the constable took into possession the clothing then worn by M.S. Her blue underwear remained in the porch at X1 T[...] Street. [ 30 ] Constable Noel Gibbons next arrived on the scene and spoke with M.S. He described her as “upset and shaken” and observed what appeared to be a fresh cut on her left shoulder.

She was then wearing a tank top and grey jogging pants. He observed what appeared to be a partial mug of either tea, or coffee, on the front step. [ 31 ] Of course, one must be cautious in ascribing weight to the behaviour of M.S. at the time. For example, one of her neighbours understood that she was upset, because her dog escaped the house. What I can say with confidence, is that M.S.’s demeanour is certainly consistent with one who has just been severely traumatized. The DNA Evidence [ 32 ] While at the Janeway Hospital, Dr. O’Dea took a swab from the exterior of M.S.’s vagina.

Subsequent testing at the RCMP Forensic Laboratory, disclosed the presence of male DNA, as well as DNA from M.S. A warrant was then obtained for the taking of DNA from Mr. Hopkins [3] . Subsequent analysis resulted in a match of Mr. Hopkins’ DNA with that on the vaginal swab. While it is true that this match would also extend to Mr. Hopkins’ paternal relatives, there is no evidence implicating anyone other than Mr. Hopkins. For others, the frequency of this match would be no more than 1 in 9,742 individuals. This evidence is corroborative of M.S.’s testimony and points heavily to the guilt of Mr.

Hopkins in committing a sexual assault. There was no evidence to support the baseless claim by Mr. Hopkins that the DNA test was “fraudulent.” The Physical Evidence Injuries to M.S. [ 33 ] Photographs of M.S. taken by Constable Stuckless, on the afternoon of 18 September 2020, disclose injuries consistent with that of a struggle.

Notably, there is abrasion to her left shoulder, approximately 1.5 centimeters in length, an abrasion to her abdomen, bruising above her left elbow and a small cut to her lower inner lip. [ 34 ] During cross-examination, M.S. candidly acknowledged that the bruising to her elbow may have been pre-existing (although she could not recall previously striking it). She was adamant, however, that the cut to her shoulder was not present before the assault.

This was the abrasion witnessed by Constables Farrell and Gibbons upon arriving at the scene. [ 35 ] I am satisfied that the injuries as recorded by Constable Stuckless were as a consequence of the struggle with Mr. Hopkins and are corroborative of M.S.’s version of events. Injuries to Mr. Hopkins [ 36 ] Constable Barnes took photographs of Mr. Hopkins during the late morning of 18 September 2020. They show that at the time of his arrest Mr. Hopkins was wearing a grey sweatshirt and dark grey sweatpants, as described by those who saw him on T[…] Street.

He has what appears to be a fresh cut to the base of his left thumb, and notably a bruise and abrasion to his upper right arm. It will be recalled that M.S. testified to biting Mr. Hopkins on the upper arm during her struggle to escape. This injury is corroborative of M.S.’s memory of the struggle and I am satisfied that it was the result of the bite inflicted by her.

The Scene [ 37 ] Photographs of the scene taken by Constable Rogers show a pair of blue ladies underwear in a crumpled up mat in the front porch, an empty glass on the lower step, and a full mug of what looks like tea, or coffee, on the front step of the house. It will be recalled that, according to M.S., when she ran outside she simply took the time to pull on her sweat pants, leaving her underwear behind. The presence of the mug and empty glass are also corroborative of her evidence. Defence Witnesses [ 38 ] Mr.

Hopkins called six witnesses in his defence. [4] [ 39 ] I am, of course, obliged to consider and weigh all of the relevant evidence in reaching a verdict, including defence evidence. Having done so, I conclude that what Mr. Hopkins tendered was irrelevant to my inquiry (and Mr. Hopkins was repeatedly advised of such during his questioning). For this reason, I do not propose to review the evidence of these witnesses. The Evidence of Stephen Hopkins [ 40 ] While not obliged to do so, Mr. Hopkins testified in his defence. He admitted to collecting recyclables in Cowan Heights and

that he was on T[…] Street, at around 9:00 a.m., on the morning of 18 September 2022. However, he denied meeting M.S. on that occasion, being on her front step, or entering her residence. He conceded that his description today with an afro style haircut and beard, was the same as that on the day in question. He offered that he is well recognized and that “everyone in the City knows who I am.” [ 41 ] Mr. Hopkins also offered that while on T[…] Street he encountered a “spunky female, well into her 20’s,” standing in the middle of the road. He related that the female had “attitude”, as she called and pointed at him.

When clarification was sought by the Court, Mr. Hopkins testified that this individual was in fact M.S. [ 42 ] The question for me to decide is not whose evidence is to be believed, Mr. Hopkins’ or that of M.S., but whether based on the whole of the evidence I do accept, the Crown has proven its case beyond a reasonable doubt. [ 43 ] As with any witness, I may accept some, none, or all of the Mr. Hopkins’ evidence. In this regard, I did not find Mr. Hopkins to be credible. He was combative with the Crown, at times refusing to answer, and was otherwise evasive.

Other than the admission that he was on T[…] Street with a shopping cart full of recyclables on the morning in question, I do not believe a single word of Mr. Hopkins’ testimony. Nor am I left with a reasonable doubt by it. [ 44 ] Specifically, I do not believe Mr. Hopkins when he says he did not meet M.S. on that morning and I do not believe his assertion that he did not enter her residence and sexually assault her. [ 45 ] Mr.

Hopkins admitted that his appearance in court had not changed from the day in question and one eyewitness saw a person of that description leaving X1 T[...] Street, followed shortly thereafter by M.S. who was crying and upset. [ 46 ] Further, Mr. Hopkins contradicted his own evidence.

On one hand he denied that he saw M.S., but then gratuitously offered that the spunky female with attitude that he encountered was indeed her. [ 47 ] When questioned by the Crown as to how his DNA found its way onto M.S.’s vagina, his response, without supporting evidence, was that the DNA is “fraudulent.” verdict [ 48 ] Returning once again to the verdict. As already stated, based on the foregoing evidence, I find Mr. Hopkins guilty as charged of all counts on the Indictment and convictions are entered accordingly. _____________________________ Donald H. Burrage Justice