2019 QCCA 1679, 2019 QCCA 1679

Witharanage c. R. 2019 QCCA 1679 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006367-179 (500-01-090341-139) DATE: OCTOBER 7, 2019 CORAM: THE HONOURABLE LORNE GIROUX, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. NISANTHA UPALI WITHARANAGE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT A PUBLICATION BAN RENDERED IN FIRST INSTANCE BY SILVIE KOVACEVICH, J.C.Q., ON FEBRUARY 16, 2015, IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIME (S. 486.4 CR.

C .) [ 1 ] The appellant was found guilty by Justice Silvie Kovacevich of the attempted murder of his friend’s eleven-year-old daughter. He appeals from the verdict because he believes that the judge erred in refusing to grant a stay of proceedings, given the failure of the Crown to obtain the declaration of a witness and given the destruction by the police of relevant evidence. He also contends that she erred in her appreciation of the evidence regarding identification. [ 2 ] For the reasons of Sansfaçon, J.A., with which Giroux and Hogue, JJ.A. concur, THE COURT : [ 3 ] DISMISSES the appeal. LORNE GIROUX, J.A.

MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Sharon Sandiford Silver Sandiford For the Appellant Mtre Pierre-Olivier Bolduc Director of criminal an penal prosecutions For the Respondent Date of hearing: May 9, 2019

REASONS OF SANSFAÇON, J.A. [ 4 ] The appellant was found guilty by Justice Silvie Kovacevich of the attempted murder of his friend’s eleven-year-old daughter. He appeals from the verdict because he believes that the judge erred in refusing to grant a stay of proceedings, given the failure of the Crown to obtain the declaration of a witness and given the destruction by the police of relevant evidence. He also contends that she erred in her appreciation of the evidence regarding identification. [ 5 ] For the following reasons, I suggest that the appeal be dismissed.

THE CONTEXT [ 6 ] The appellant was a friend of the complainant’s mother. He lived in a room adjoining the apartment where the complainant lived with her mother. Sometimes, the complainant’s mother left her in his care when she had to go to work. He had a close relationship with the complainant, and she used to call him “uncle.” [ 7 ] The events, as they were presented by the Crown and found by the trial judge, are as follows. [8] On May 26, 2013, the complainant spent the day at home playing with her cousin.

In accordance with family traditions, she was not allowed to go outside as she was having her first menstrual periods. Her cousin left at around 6 p.m. The complainant then lay on the sofa and watched television for about one to one and a half hours. She saw the appellant go up the two or three stairs that lead outside of the house a few times as if to watch if someone was coming. Later, he asked her to sit up so that he could try a necklace around her neck, telling her that he intended to buy her one. He tried it around her neck once, and a second time, more tightly.

Then, he took her skipping rope, slipped it around her neck and choked her. He told her that he would not hurt her, that he would kill her. They fought, she fell on the floor and slapped him on the face. When she became unconscious, the appellant dragged her by her hair outside the apartment and left her for dead in the alleyway behind the house. [9] Sometime later, the complainant woke up. She tried to get help from a neighbour without success and walked a short distance to her friend’s house. There, she informed her friend’s mother, Ms. K., of the attack and identified the appellant as her attacker.

The appellant arrived at the house and demanded to see her. He looked distraught. After the complainant’s mother had arrived at Ms. K.’s house, he returned again. He and the complainant’s mother had an exchange through the door. The police were called. Later, the police caught the appellant fleeing in a bus, bearing his banking information, immigration papers and passport. He told the police that he was going to the hospital, but the bus was going the opposite way. [10] The appellant’s version varies only from the moment he asked the complainant to try the necklace on.

He asked her to try on a necklace as he wanted to buy her a similar one. After this, she asked him for permission to go play outside, which he granted. It was around 7:40 p.m. He accompanied her outside, where he saw two boys aged around 14-15 years old. He asked the complainant to wait until the boys were gone. He came back to his room and fell asleep. At around 8:45 p.m., he heard the complainant coming into the house and he brought her a bottle of Pepsi. He went out to buy food for the complainant in a nearby store.

As the store was closed, he went for a walk around a park, where he was attacked by the two boys he had seen earlier. He was hurt. He saw that one of the boys had the complainant’s skipping rope in his possession. He ran to the house to see if the complainant was still there and saw that she was not. He ran out of the house and after the two boys, who attacked him again. He ran back to his house to see if the complainant was still missing. She was, so he went out again to look for her.

He talked with the complainant’s mother on the phone and told her that he was going to the house of the complainant’s friend to see if she might be there. As he ran towards that house, he saw the skipping rope lying on the ground. He then encountered the two boys again. They attacked him for a third time and grabbed him by his t-shirt, which he lost while escaping. He arrived at Ms. K.’s house wearing only pants. Ms. K. chased him off. When the complainant’s mother arrived, she told him that everything was ok. She entered the house, but refused to let him in. He decided to go to the hospital.

He passed by his room to collect all his personal documents, in case the hospital asked him to produce them. He mistakenly took the bus in the opposite direction from the hospital, but decided to continue towards another hospital. He was arrested on the bus. GROUNDS OF APPEAL [11] The appellant advances two grounds of appeal based on errors of law. [12] First, he contends that the trial judge erred in refusing to grant a stay of proceedings, given the failure of the Crown to obtain the declaration of the eleven-year-old friend of the complainant (Ms. K.’s daughter).

He contends that the judge should have ordered the Crown to obtain said declaration. Ms. K. had declared to the police that her daughter played with the complainant until supper time on May 26, while the complainant testified that she had stayed home that day with her cousin. According to the appellant, the whereabouts of the complainant on that day are of the utmost importance in the chain of events leading to the crime. Consequently, as it was the Crown’s burden to gather and communicate to the appellant all relevant evidence, [1] the Crown should have instructed the police to obtain a declaration from Ms.

K.’s eleven-year-old daughter, and the failure to do so affected his right to make a full answer and defence . [13] Secondly, the appellant contends that the trial judge made a another error when she refused to grant a stay of proceedings, given the destruction of relevant evidence by Sargent Talbot, the policeman in charge of the police (SPVM) warehouse where seized objects are kept. Among the 17 items of evidence destroyed were the weapon used to commit the crime, the complainant’s skipping rope, as well as her bra.

While DNA testing had been conducted on the complainant’s and appellant’s clothes, on the skipping rope, and on substances found in the apartment, prior to their destruction, none of the results clearly identified the appellant as the author of the crime. As male DNA was found on the rope and on the complainant’s bra in quantities unfit for comparison, and as two male profiles were identified on the bra, its destruction – so the appellant suggests – thwarted his right it to try to establish a better genetic profile of

these two men. This would have helped the defence to contradict the Crown’s theory that there was only one perpetrator. [14] The third error advanced by the appellant with leave is an error of fact or of mixed law and fact, as it relates to the appreciation of the evidence regarding identification. [2] JUDGMENTS APPEALED Judgment on Voir Dire 1 [15] The judge decided that the failure of the prosecution to obtain a statement from the complainant’s eleven-year-old friend did not warrant a stay of proceedings.

The friend’s version was sought because of a contradiction between the friend’s mother and the complainant’s versions of the events of May 26, 2013. While the complainant testified that she played with her cousin during the day, her friend’s mother said that she played with her daughter that day and that the latter came back for dinner around 7 p.m. Since the Crown’s theory was that the crime occurred after 7 p.m. that evening, they did not find it relevant to test the complainant’s version of what she was doing during the day.

The judge found that the Crown did not have a duty, as part of its disclosure obligations, to find out the friend’s version. She stated that an accused does not have a right to steer the police inquiry towards elements that may (or may not) strengthen his defence. Judgment on Voir Dire 4 [16] The judge decided that the destruction of the objects collected at the crime scene while they were in police care did not warrant a stay of proceedings. Applying the legal framework developed in the case of R. v.

La , [3] she examined the allegations of negligence made against the police and weighed the extent of the prejudice suffered by the accused as a result of the destruction.

Having heard detailed testimony on the functioning of the police warehouse system and on the circumstances of the destruction of these specific objects, the judge concluded that the cause of the destruction was “human error,” and that the actions of the police had not been negligent or ill-intentioned. [17] On the question of the prejudice to the accused’s right to a full answer and defence, the judge concluded that the accused did not meet his burden of proof.

The evidence rather showed that the objects had been thoroughly analysed and that all the DNA samples collected on the relevant objects – the skipping rope, the complainant’s shirt and the complainant’s bra – were still available for the purpose of obtaining a second expert opinion, something the defence never did. The defence’s argument was that the male DNA profiles found on the skipping rope and the bra (of insufficient quality or in insufficient quantity to allow for comparison) would warrant further analysis in order to exclude the accused or prove that someone else had perpetrated the attack.

The judge concluded that this possibility was merely hypothetical and that, even if another male profile could be identified on one of the objects, this would not be sufficient to exclude the accused from the scene of crime. Judgment on the Verdict [18] The judge concluded that the Crown had met its burden to demonstrate beyond a reasonable doubt that the accused had committed the attack suffered by the complainant. In her oral reasons, she performed a W(

D) analysis. [4] She concluded that the accused’s version of the events on the night of May 26, 2013 did not raise a reasonable doubt. She also found that the complainant’s testimony was credible and suffered from no major contradiction.

Relying on the complainant’s testimony, the corroborating testimony of other witnesses, the res gestae statement made by the complainant to her friend’s mother, circumstantial evidence showing that the attack occurred in the complainant’s apartment, and the accused’s conduct after the fact, the judge concluded that the Crown had satisfied its burden of proving identity beyond a reasonable doubt. She therefore convicted the accused of attempted murder. ANALYSIS [19] Two of the appellant’s grounds relate to the judge’s decision not to grant a stay of proceedings.

As this Court explained in Simard c R , the cases that warrant such a draconian remedy are rare : [57] Les parties s’entendent quant au caractère exceptionnel de la réparation de l’arrêt des procédures. Il n’existe, en effet, que de rares cas – on les qualifie souvent de « cas les plus manifestes » – dans lesquels un abus de procédure justifie ce remède.

Les parties ne contestent pas que la révision en appel d’un jugement en cette matière doit être marquée par la déférence : seules une erreur de droit, une erreur manifeste et déterminante ou une erreur menant à une injustice peuvent justifier l’intervention de la Cour.

Comme le rappelle mon collègue le juge Doyon dans l’arrêt Tshiamala , cette déférence est de mise parce que la décision d’accorder ou non un remède en vertu de l’ article 24(1) de la Charte est avant tout discrétionnaire. [58] Les parties ne contestent pas, non plus, que le cas de figure qui nous intéresse ici est ce que la Cour suprême qualifie dans l’arrêt Babos de « catégorie principale » des abus de procédures : ceux où la conduite de l’État compromet l’équité du procès de l’accusé.

Dans cette affaire, le juge Moldaver expose ainsi, pour les juges majoritaires, le premier volet du test applicable à l’égard d’une demande d’arrêt des procédures : « Il doit y avoir une atteinte au droit de l'accusé à un procès équitable ou à l'intégrité du système de justice qui "sera révélé[e], perpétué[e] ou aggravé[e] par le déroulement du procès ou par son issue" ( Regan , par. 54) ». [5]

1. Did the trial judge err in refusing to grant the stay of proceedings given the failure of the Crown to obtain the declaration of the eleven-year-old friend of the complainant?

Did she err in failing to order the Crown to obtain the declaration? [20] The Crown has a duty to disclose all “the fruits of its inquiry” or “all relevant information.” [6] As Sopinka J. explains, however, this duty is “not absolute.” Notably, the Crown has a measure of discretion as to what constitutes “relevant information.” [7] While Sopinka J. wrote that this duty of broad disclosure applied to all declarations of Crown witnesses, he suggested it was not necessarily the case for “potential” witnesses: “In our view a recommendation to this effect would be excessive and disproportionate to the needs of the defence.” [8] He concluded that “all statements obtained from persons who have provided relevant information to the authorities” would constitute the appropriate extent of the Crown’s duty to disclose.

The Crown however has no duty to disclose evidence that is clearly irrelevant. [9] [21] On the question of relevance, the Supreme Court wrote in R. v. Gubbins : [10] [26] Information will be “likely relevant” where there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify”: O’Connor , at para. 22 (emphasis deleted). The “likely relevant” threshold has been described as significant, but not onerous: O’Connor , at para. 24; McNeil , at para. 29.

The reason that the relevance threshold is “significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming” requests for production: O’Connor , at para. 24, quoting R. v. Chaplin , at para. 32 . [References omitted] [22] The Judge, in her reasons, relied on Darwish , a case in which the Ontario Court of Appeal said, on the Crown’s duty to look for evidence that would favour the accused: [29] An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her: R. v.

Barnes, at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence. [30] An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target . As Hill J. put it in R. v.

West, at para. 75, the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused"; see, also, R. v. Schmidt, at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest.

Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution and not with the defence. [31] Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences . [11] [My emphasis, detailed references omitted] [23] Finally, on disclosure as an ever-perfectible endeavour, McLachlin J. (as she then was) wrote the following: “What the law demands is not perfect justice, but fundamentally fair justice.” [12] In other words, while the accused may want the prosecution to look harder for information that may be helpful to his defence, notably in cross-examining Crown witnesses, it is not the obligation of the Crown to canvass such never-ending possibilities. [24] It is not disputed that there is a contradiction between the complainant’s testimony, according to which she had stayed home with her cousin on the day of the attack, and Ms.

K.’s testimony, according to which her daughter played with the complainant until dinner time (around 7 p.m.) on that day. However, such a contradiction, if resolved, would have no bearing on the complainant’s whereabouts after 7 p.m. on that day. [25] The evidence suggests that the attack occurred after 7 p.m. The complainant testified that she called her mother at around 6:30 p.m. (after her cousin had left the house). She watched television, took a bath and started watching television again. From her position on the couch, she could see the whereabouts of the appellant.

She saw him open the outside door a few times as if to watch if someone was coming. The appellant asked her to try on a necklace. Then, the attack occurred. The complainant fought with the appellant, and she lost consciousness as the appellant was strangling her with her skipping rope. It was dark when the complainant woke up in the alleyway behind her house. After a neighbour refused to help her, she arrived at her friend’s house around 10 p.m. The 911 call was made at 10:16 p.m. The evidence fully justifies the judge’s conclusion that the crime occurred after 7 p.m.

Therefore, it appears irrelevant, where the complainant was or what she was doing before then. [26] In addition, further evidence corroborates the complainant’s narrative, according to which she was in her home and not outside playing with her friend when the attack occurred. Indeed, when the complainant arrived at her friend’s house after the attack, she was wearing her pyjamas and had no shoes on. As noted by the trial judge, children rarely play outside in May, on a rainy evening, wearing pyjamas and no shoes .

In addition, the complainant’s blood was found in the apartment, further suggesting that the attack took place there. Thus, the Crown had no obligation to obtain the friend’s statement to test the complainant’s version of what she was doing before 7 p.m., as it is not relevant, and also because the whole of the evidence suggests that the complainant was inside her home when she was attacked. The trial judge was right not to grant the stay of proceedings, and not to grant the defence’s request that the complainant’s friend be called as a Crown witness. 2.

Did the trial judge err in refusing to grant the stay of proceedings given the

destruction of the relevant evidence? [27] In addition to the Crown’s duty to disclose all relevant evidence, the Crown has a duty to preserve the evidence collected. [13] In cases of lost or destroyed evidence, a corresponding duty arises for the Crown to explain what happened. The Supreme Court articulated this obligation as follows: [20 ] This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant.

Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2) , supra , recognizes this unfortunate fact.

Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. [14] [28] In R v Fournier , [15] this Court reiterated that it is sufficient for the accused to demonstrate “ la possibilité d'une atteinte réaliste à son droit à une défense pleine et entière pour donner ouverture au droit de demander un remède approprié en vertu de l'article 24.1 de la Charte. ” [16] Once such a possibility of infringement is demonstrated, the burden is shifted to the Crown to establish (

a) that the object that was lost or destroyed had no relevance to the case or (

b) that it was not lost or destroyed due to unacceptable negligence . [29] This “duty to explain”, however, does not exhaust the analysis.

As Sopinka J. explained, there may be exceptional cases where – despite the Crown’s satisfactory explanation – the prejudice to the accused’s right to make a full answer and defence will be so great as to warrant a stay of proceedings: Even where the Crown has discharged its duty by disclosing all relevant information in its possession and explaining the circumstances of the loss of any missing evidence, an accused may still rely on his or her s. 7 right to make full answer and defence.

Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. [17] [30] In Salame v. R. , [18] this Court reiterated the principles articulated in point form by the Nova Scotia Court of Appeal in R. v. F.C.B. [19] and applicable to a situation where the accused shows the possibility of a realistic infringement of his right to a full answer and defence arising from the fact that some evidence is no longer available because it was lost or destroyed:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence. [20] [31] More recently, in Simard v R this Court added: [ 68 ] Je retiens de La et Kociuk l’enseignement suivant : s’il est établi que la perte n’est pas le résultat d’une négligence inadmissible ou d’un abus de procédures, le fardeau revient à l’accusé qui doit démontrer l’existence d’un préjudice concret à son droit à une défense pleine et entière.

Comme le juge Doyon l’a écrit récemment dans Cartier : « Il faut toutefois souligner la possibilité que, même en présence d’une explication raisonnable, la preuve perdue ou détruite soit si importante que le droit à une défense pleine et entière est violé, ce qui entraînerait un procès inéquitable et pourrait justifier un arrêt des procédures ».

Le juge Doyon ajoute, en s’appuyant sur les mêmes paragraphes de l’arrêt La cités plus haut, que « cela ne pourra toutefois se produire que dans des situations exceptionnelles ». [21] [References omitted] [32] Indeed, where measures are available to minimize the prejudice caused, the case will not warrant a stay of proceedings. [22] Such measures include the use of “secondary evidence” (if available), [23] which can allow for cross-examination of witnesses. [24]

[33] In addition, the prejudice suffered by the defence will be proportional to the probative value and reliability of the evidence destroyed: where the lost or destroyed evidence had a low probative value or reliability, the prejudice to the accused will be proportionately lower. [25] [34] The judge first concluded that many of the objects destroyed were irrelevant to the case, as they were collected on the surrounding grounds or in the recycling bin, and had nothing to do with the crime. [35] As to the relevant pieces of evidence, the judge accepted the Crown’s explanation that their destruction had been due to “human error”, rather than gross negligence or malicious intent.

This was a question of fact. The suggestion of the defence had been that all the objects, which bore the mention “negative result” for DNA testing, had been willfully destroyed by Sargent Talbot, the employee in charge of the police warehouse (Exhibit Room, Centre d’enquête Ouest). Nor did she find that the error amounted to gross negligence. It was the first time in more than 6 years that an object had been mistakenly destroyed by Sargent Talbot (he had once before destroyed an object, but had been misled by the officer in charge of the investigation).

Consequently, the judge did not accept the defence’s suggestion, and rather concluded that Sargent Talbot had destroyed the evidence by mistake. [36] Considering the deference owed by this Court to the trial judge's findings of fact, I am of the opinion that the appellant did not show us any palpable or overriding error in the trial judge's characterization of the degree of police negligence that led to the destruction of the material evidence.

The explanation offered was sufficient, in my view, to justify her conclusion that the Crown freed itself from the burden it had of establishing either the lack of relevance of the destroyed physical evidence, or the absence of negligence in its destruction, abandonment or loss. [37] As for the possibility that there may still be a breach of the right protected by

section 7 of the Charter, the appellant did not show that the loss was so prejudicial to his right to make a full answer and defence that it impaired his right to a fair trial and that a stay of proceedings would be the only appropriate remedy. [38] First, the Crown did not rely on that DNA evidence to identify the appellant as the perpetrator of the crime, as the amount or quality of the DNA collected did not permit any conclusive result. [39] Second, prejudice to the appellant’s right to make a full answer and defence was not established.

In this case, what is called “secondary evidence” by Vauclair and Desjardins, [26] or evidence in some way derived from an initial piece of evidence, was available. The samples of DNA collected on the objects remained available to the appellant and could have been submitted for a second expert opinion. Further, the biologist who analyzed the samples testified that it was unlikely that new samples could be collected on the bra. He said : R. […] j'ai refait un prélèvement sur les extrémités [du soutien-gorge].

C'était dans le but d'obtenir une combinaison différente au point de vue rapport entre les profils génétiques. Et, dans ce cas-là, j'ai obtenu le profil génétique de la plaignante. J'ai perdu les traces qui étaient non-valides de la première fois. Q. Et votre explication, par rapport au fait d'avoir perdu les traces - comme vous dites - c'est quoi? R. On peut penser que la première fois que j'ai prélevé, j'ai tout prélevé ce qu'il y avait.

Et la deuxième fois, il n'en restait plus, ou plus suffisamment. [40] As for the skipping rope, the evidence suggests that the biologist collected samples from most, if not all, of the rope. Moreover, pictures of all the relevant objects were produced during the trial.

These facts, together with the DNA samples still available for testing, suggest that the prejudice suffered by the accused from the destruction of the objects themselves, for the purpose of DNA sampling and analysis, was low. [41] Furthermore, the probative value of the DNA evidence available in this case could not raise a reasonable doubt in favour of the appellant.

The absence of the appellant’s DNA on the skipping rope or on the complainant’s clothes would not be sufficient in itself to raise doubt that he was the perpetrator. [42] As for the presence of someone else’s DNA on the skipping rope or the complainant’s clothes, it was found in a quantity and of a quality insufficient for comparison. As the biologist explained, every-day objects, such as the skipping rope or even the clothes, could yield the DNA of any previous handler, often in such insufficient quantity or of such insufficient quality. As he testified: R.

En fait, il y a une croyance générale qui n'est pas tout à fait exacte, dans le sens qu'on pense que si je touche à quelque chose, je vais laisser de l'ADN c'est sûr. En réalité, ce n'est pas sûr que je vais laisser de l'ADN en quantité suffisante pour pouvoir l'analyser.

Pour presque tous les objets qu'on reçoit au laboratoire, quand il s'agit de déterminer qui a manipulé l'objet, on privilégie la recherche d'empreintes digitales. [43] But even if, as the appellant suggests, the objects had not been destroyed and the presence of someone else’s DNA on the skipping rope or the complainant’s clothes had been found in a quantity or of a quality sufficient for comparison, nothing indicates that a match could have been found with another sample in a DNA bank, as argued by appellant.

This suggestion is therefore purely theoretical. [44] In short, I believe the trial judge was well founded in finding there was no violation of the appellant's right to a full and realistically possible defence and that she made no legal error in that regard. It is therefore not necessary to consider what remedy could have been provided under section 24(1) of the Charter. 3. Did the trial judge err in her appreciation of the evidence regarding identification, notably in her reading of the biologist’s report?

[45] In cases in which the Crown and the defence present conflicting versions of events and the verdict rests on the credibility of witnesses, as in the present case, the proper analysis to conduct is set out in the case of W(D) : [27] 1. Where the accused is believed, the trier of facts must enter an acquittal. 2. Where the accused is not believed, but a reasonable doubt arises out of his testimony, the trier of facts must enter an acquittal. 3.

Where no reasonable doubt arises out of the accused’s testimony, but the whole of the Crown’s evidence leaves a reasonable doubt on an essential element of the offence, the trier of facts must enter an acquittal. [46] This analysis ensures that the burden remains on the Crown to prove every element of the offence beyond a reasonable doubt, and that the accused is not convicted simply because his version is less credible or less likely than the version of the Crown’s witness. [28] [47] Here, the relationship between the testimony or declaration and the DNA evidence is one of corroboration.

Corroboration of a declaration by material evidence (e.g. DNA) can help establish credibility, [29] but its absence is by no means fatal. I would endorse the statement of the Ontario Court of Appeal as regards the necessary assessment of the reliability of DNA evidence: At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put.

Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence.

The trial judge should tell them to use their common sense in their assessment of all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence. [30] [My emphasis] [48] While there was no jury to advise in the present case, it was for the judge to use her common sense in assessing the reliability of the biologist’s report. [49] In this case, the accused hoped to raise a doubt on the question of identity.

He implied in his testimony that he believed two suspicious looking boys, who had attacked him not once, not twice, but three times on the night of May 26, 2013 (explaining his injuries), were also responsible for the attack suffered by the complainant. He further testified that he went looking for the complainant at her friend’s house, because she had not returned from playing outside. While he was distressed by the disappearance of the complainant, he explained that he did not call the police because his relationship with the complainant’s mother was a secret.

Lastly, when arrested by the police fleeing the scene in a municipal bus, bearing his personal and immigration papers, he explained that he was going to the hospital, but the bus was going the opposite way. It is no surprise that the judge did not believe his story.

Indeed, she found that his testimony did not raise a reasonable doubt, which covers the first two steps of W(D) . [31] [50] However, the defence contends that, while the appellant’s testimony may not in itself raise a reasonable doubt, one element of the evidence adduced by the Crown does: the mention, in the biologist’s report, of “two male DNA profiles” found on the complainant’s clothes. The defence argues that the mention of these two profiles suggests that the attack was committed by two men, and not by the appellant.

Further, the skipping rope’s middle part also bore a male DNA profile, excluding that of the appellant. The defence argues that these elements are sufficient to raise a reasonable doubt on the identity of the perpetrator. The judge concluded otherwise and with good reason. [51] First, the biologist’s report also states that the complainant’s blood was found in two places in the apartment, confirming her version that the attack took place there.

It also states that blood containing a mixture of two DNA profiles, from one of which the complainant’s profile could not be excluded and the other one being the appellant’s, was found at the entrance door, partly confirming the Crown’s position that the complainant was dragged up the stairs and through the front door after the attack.

The biologist’s report therefore corroborates the complainant’s version of the events. [52] As for the remainder of the evidence adduced by the Crown, it established that on May 26, 2013: - The complainant was attacked by the appellant in her apartment, while watching television. - She suffered grievous injuries, which leaves no doubt as to the nature of the attack suffered. - No one but the complainant and the appellant was in the apartment that night. - The complainant woke up in the alley behind her apartment. - The complainant was seen by a neighbour in a state of panic. - The complainant arrived at her friend’s house wearing nothing but her pyjamas and with no shoes on. - The complainant immediately identified the appellant as her aggressor. - The accused showed up at the house sometime after the complainant, knocked on the door and demanded to see her.

He appeared dishevelled and intoxicated. - The accused was arrested moments later, fleeing with his personal and immigration documents, in a direction opposite to that of the hospital he said he was going to. [53] Thus, as regards the third step of the W.(D.) analysis, the judge found that the evidence as a whole left her with no reasonable doubt as to the perpetrator’s identity. She did not err in concluding as she did.

[54] A male DNA profile excluding that of the appellant found on the skipping rope does not raise a reasonable doubt. The fact that the appellant’s DNA was not clearly found on the complainant’s clothes or on the skipping rope does not mean he never touched them. [32] As such, it does not raise a reasonable doubt either. [55] In my view, the judge made no error in her assessment of the evidence regarding identity. I therefore propose that the Court dismiss the appeal. STÉPHANE SANSFAÇON, J.A.