R v Singh et al, 2020 MBCA 61

Citation: R v Singh et al, 2020 MBCA 61 Date: 20200611 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Docket: AR18-30-09073 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) S. B. Simmonds, Q.C. and ) A. R. Hodge Respondent ) for the Appellant ) K. Singh - and - ) ) KAHAN SINGH ) J. C. Pinx ) for the Appellant (Accused) Appellant ) A. S. Dhillon ) - and - ) ) J. M.

Mann Docket: AR18-30-09074 ) for the Respondent BETWEEN : ) ) HER MAJESTY THE QUEEN ) Appeals heard: ) November 8, 2019 Respondent ) ) - and - ) Judgment delivered: ) June 11, 2020 AJAIB SINGH DHILLON ) ) (Accused) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ) . MONNIN JA [ 1 ] The accused, Kahan Singh (Singh) and Ajaib Singh Dhillon (Dhillon) (collectively, the accused), were each charged with one count of sexual assault and one count of sexual interference with respect to an event involving a 14-year-old teenager (the complainant). [ 2 ] After a trial before a judge alone, they were both convicted on each count. The conviction for sexual assault was stayed and they were sentenced on the count of sexual interference to a period of incarceration of three years each. They appeal their convictions and sentences.

The main focus of their appeals is that the trial judge misapprehended the evidence with respect to the DNA evidence, but there are other grounds. For the reasons that follow, I would dismiss their appeals, both as to conviction and sentence. Evidence and Trial The Complainant’s Evidence

[ 3 ] The complainant’s evidence at trial proceeded by way of an application under

section 715.1 of the Criminal Code (the Code ) and was comprised primarily of a videotaped statement she had provided to police. [ 4 ] The complainant, who was 19 at the time of the trial and 14 at the time of the alleged offences, was a troubled teenager who had engaged in many risk-taking behaviours, including drinking alcohol and taking illegal drugs, lying to her parents, associating with men who were older than herself and staying out past her curfew.

She had been hospitalised approximately 13 times for psychiatric issues and took prescription medication for depression, anxiety and sleep problems; she had taken some of that medication on the day of the alleged offences. [ 5 ] On the day in question, February 10, 2013, in the afternoon, the complainant met up with her similarly aged friend, T.B., at a local shopping centre. Near the food court, they came across both accused who were at the mall with a third male. Her evidence was that an individual who introduced himself as Sam (later identified as Singh) commenced a conversation.

When she agreed to go with the men in their car, her friend left. The complainant indicated she told Singh that she was 14 years of age. She was asked if she drank and did drugs. She was then offered a drug she had never tried before and decided to go with the accused. They purchased some beer and marihuana and went to their apartment.

They sat in the car drinking the beer and smoking the marihuana. [ 6 ] In her original statement, the complainant described the men she was with as Number One and Number Two, with the first being with her in the back seat of the car and the second driving the vehicle (as a result of further evidence, including the statements given by the accused and photo lineup forms for each accused shown to the complainant, the likely conclusion to be drawn is that Singh was in the back seat and Dhillon was driving the vehicle). [ 7 ] The complainant testified that, in the vehicle, she blacked out from time to time.

She also testified that the individual in the back seat undid her shirt. She recalls him trying to kiss her and that she kept saying no. Her memory was that she walked into the apartment with all three males where she consumed more marihuana and alcohol. [ 8 ] Throughout the evening, she text messaged her family and her friends who were responding negatively as she was supposed to have been home by 7:00 p.m. At around 1:00 a.m. she removed the battery from her cellular phone to avoid further communication. [ 9 ] The complainant described that she was in two bedrooms in the apartment.

The first bedroom had a single bed with yellow sheets and the second had a double bed with bedding featuring an actress (Selena Gomez). In his statement to the police, which was introduced into evidence, Singh admits that such bedding was present on his bed, although that bed was used by Dhillon from time to time. [ 10 ] The complainant remembered smoking in the first bedroom and a male walking into the bedroom without pants. When first asked if Singh had done anything to her sexually in the apartment, she said she thought so but could not remember.

However, later in her statement, she clarified that “Sam” had done sexual things to her in the first bedroom. In her statement, she described being sexually assaulted in the second bedroom, believing that Dhillon had taken off her pants. She blacked out but, when she awoke, she thought that she and Dhillon were both naked and he was having intercourse with her. [ 11 ] When she woke up the next morning, her shirt was unbuttoned and her bra was not done up properly. Singh drove her back to the mall in the morning where her mother picked her up.

At first, she did not intend to report the incident to police, but her mother took her to the hospital where she underwent a sexual assault protocol and gave a statement to the police. The underwear she was wearing was seized and samples were taken from her. Those samples, along with her underwear, were sent for forensic analysis. [ 12 ] The Crown also called the complainant’s friend who had been with her at the mall. She confirmed that they met two individuals at the mall, one of them whose name was Sam. She said that Sam had guessed that the complainant was in Grade 11 but was told she was in Grade 9.

She identified herself on a security video image taken around the time of the incident. She also testified that the complainant gave her correct name to the individual named Sam. [ 13 ] Singh’s telephone number was retrieved from the complainant’s cellular phone and he was interviewed by police on April 9, 2013. His version of the events was quite different. He remembered meeting a girl named “Lisa” near the food court at Polo Park with his friend Dhillon and another roommate. He said that “Lisa” told him that she was a student at the University of Manitoba and he thought she looked 23 or 24 years old.

While they did drive away with her and eventually bought beer, she had three beers in her pocket and was the one who wanted to go with them. He denied buying marihuana. He denied that any sexual activity took place at the apartment. He indicated in his statement that “Lisa” slept in the bedroom that had the Selina Gomez bedding, which was the bed in which he normally slept. He said the complainant remained fully dressed while she slept and, when she woke up in the morning, he drove her back to the mall. [ 14 ] Similarly, Dhillon was interviewed by police on May 25, 2013.

He advised that he was a long-haul truck driver and had just come home after being away for approximately two weeks when he went to the mall with Singh and their roommate. He also described meeting “Lisa” near the food court where she had told them she was a university student, and he believed she looked 24 or 25 years old. She was the one who had beers with her and wanted to drink them in the car, but they refused. As well, she indicated that she wanted marihuana, but they declined. They did stop to purchase beer on their way to their apartment.

She went to sleep in Singh’s room, which had the Selena Gomez bedding, but he denied that he had any sexual contact with her and, when he woke up the next morning, she was gone. [ 15 ] Both accused were served with DNA warrants and samples were obtained from them. Forensic Evidence [ 16 ] The swabs and underwear taken at the hospital were forwarded to the RCMP forensic laboratory. On August 20, 2013, the lab reported to the Winnipeg Police Service that semen had been identified:

a) on the swab taken from the complainant’s vulvar region;

b) on the swab taken from her vagina; and

c) on all three areas of the underwear, namely, the interior front crotch, the upper back

and the upper front. [17] Once a comparison had been done with the DNA samples taken from the accused, a report was prepared datedFebruary 24, 2014, which indicated that:

a) Singh’s DNA matched the male component at the three spots on the underwear and therandom-match probability was one in 48 trillion;

b) the partial DNA profile of one component from the vulvar swab matched Singh’sDNA with a random-match probability of one in 2.4 trillion; and

c) the partial DNA profile of another component from the vulvar swabmatched Dhillon’s DNA with a random-match probability of one in 40 thousand. No match was returned with respect to the vaginalswab. [18] At trial, the author of the reports, Ms Caragh Geiser, a forensic specialist with the RCMP (the Crown’s forensic expert),testified with respect to DNA evidence, including commenting on the two reports. She was extensively cross-examined on two facets ofher evidence. The first was on her inability to identify the exact source of the DNA and the manner by which it could have been placedon the complainant.

The second was the minute amount found on the complainant and whether it was inconsistent with having beenderived from liquid semen. It was suggested to her that the DNA’s location and quantities were consistent with having been depositedthere by transference at a time not necessarily related to the time of the incident. Her evidence was that the DNA contained in thesamples was from semen but she acknowledged that transference of DNA left from a time not related to the incident could not be ruledout. [19] The accused called no evidence at trial and the matter proceeded to judgment.

The Trial Judge’s Reasons [20] In his reasons for judgment, the trial judge reviewed the evidence of the complainant in some detail, as well as that ofher friend. He reviewed the expert testimony of the Crown’s forensic expert, including the evidence she provided on cross-examination. In particular, he noted that she could not provide testimony as to how the DNA got to where it was found and whether it was there as aresult of a secondary transfer. He noted further that there was a small amount of DNA that was quantified and that it could have beenplaced on the beds at a different time.

He concluded that he had no difficulty accepting the expert’s testimony. He reviewed in detailthe evidence from the statements of both accused and, in particular, the denials of having purchased drugs or having had any sexualrelations with the complainant. [21] After reviewing the evidence and the positions of the parties, the trial judge confirmed that he was required to proceedwith a W(

D) analysis (see R v W(D), (SCC), [1991] 1 SCR 742), and that there were two issues in the case: namely, thereliability and credibility of the complainant’s evidence; and the DNA evidence—in particular, whether transference was a possibleexplanation for the presence of the DNA of both of the accused. [22] Considering first the evidence of the accused, he found neither one credible and was not left with a reasonable doubtfrom their denials of sexual relations with the complainant.

He found that the denials were inconsistent with the presence of DNAcontaining the semen of both accused on the complainant’s underwear or in her vulvar region, noting that, in the case of Dhillon, it wasonly in the vulvar area. [23] The trial judge disbelieved the statements of both accused that they were told by the complainant that she was auniversity student and that she looked like she was older than her 14 years, stating that the complainant and her friend appeared veryyoung on the videotaped statements they gave.

In his view, they did not look older than 14. [24] As to the evidence of the complainant, he accepted it and that, while her recall of the events was limited, he found hercredible and also that her recollection of sexual activity involving herself and two individuals, even though not complete due to theblackouts, was consistent with the presence of DNA of both accused on her underwear and in her vulvar area. He also noted that she wasable to identify both accused in a photo pack.

He found corroboration for the complainant’s evidence in the statements of the accused indifferent respects: for example, her description of where everyone was sitting in the car, the fact that Singh referred to himself as Samand the particular bedsheets in Singh’s bedroom. [25] The trial judge accepted the complainant’s evidence that she remembered engaging in sexual intercourse in the secondbedroom but was unable to definitively identify whether it was Dhillon or Singh.

The trial judge concluded that the presence of theDNA of both accused in the locations where it was found corroborated the complainant’s evidence that both accused had sexual contactwith her. He was not satisfied beyond a reasonable doubt that they had sexual intercourse, but concluded that contact of a sexual nature,including ejaculation, did occur. He concluded that the only explanation for the presence of the semen of both accused in locationswhere it was found was that sexual activity had occurred.

He did not find the presence of the semen of both accused could be as a resultof its transfer from bedsheets. [26] In dismissing the possibility of transference as an explanation for the presence of semen on the complainant, the trialjudge noted that Dhillon stated that the complainant slept in Singh’s bed while he slept in his own bed and he had been away for twoweeks previously, suggesting that the opportunity to leave his DNA there was not likely.

In the case of Singh, there was DNA evidenceat three locations on the complainant’s panties and her vulvar area while his evidence was that he did not sleep in the room that night. [27] As to the events in the car, he was not satisfied beyond a reasonable doubt that sexual contact had occurred in the backof the car. [28] As to consent, the trial judge accepted the complainant’s evidence that she was blacking out during the interactionswith the accused at the apartment and was satisfied beyond a reasonable doubt that she could not consent because of her level ofintoxication.

As to the allegation of mistake of age, he did not believe the evidence of the accused that the complainant introducedherself as a university student and he found that the accused would have realised that she was not of age given her appearance and yettook no steps to reasonably ascertain it. Sentence

[ 29 ] After reviewing the facts upon which he found both accused guilty, the trial judge concluded that what had occurred was a serious sexual assault. He considered the personal circumstances and history of both of the accused. While he had a reasonable doubt as to whether sexual intercourse had taken place, he was satisfied that there was sexual activity which justified a finding of a major sexual assault given the presence of the semen of both of the accused in and around the complainant’s underwear and genital area.

In his view, the fact that the complainant was severely intoxicated and blacking out was an aggravating circumstance and he imposed a sentence of three years’ incarceration for each of the accused. Issues [ 30 ] Both accused raise a number of grounds of appeal which can be distilled as follows: (

a) that the trial judge erred in law by applying a different standard of scrutiny to the evidence of the complainant than that of the accused; (

b) that the trial judge erred in his assessment of certain aspects of the evidence; (

c) that the trial judge erred in failing to admit the second statements given by the accused; (

d) that the trial judge erred in misapprehending the DNA evidence and his application of the law regarding circumstantial evidence leading to an unreasonable verdict not supported by the evidence; and (

e) that the trial judge erred by classifying the events as a major sexual assault and imposing a sentence that was unduly harsh as a result.

Different Standards of Scrutiny [ 31 ] This Court has recognised that applying a stricter or different standard of scrutiny to the evidence of an accused than used to assess the evidence of a Crown witness is an error of law that undermines the fairness of the trial and can lead to a miscarriage of justice (see R v Jovel , 2019 MBCA 116 ; see also R v Owen , 2001 CarswellOnt 3852 at para 3 (CA) ). [ 32 ] However, this is a difficult argument to make as the accused must meet the threshold of demonstrating “something sufficiently significant” ( R v Phan , 2013 ONCA 787 at para 34 ) in the reasons or the record that establishes that a trial judge employed faulty methodology in deciding credibility. [ 33 ] As stated by Mainella JA in Jovel (at para 38 ): . . .

In consideration of an uneven scrutiny claim, the appellate court must again take care to not overstep its role and retry the case; an evaluation of testimony may only be interfered with where it cannot be supported on any reasonable view of the evidence (see CAM [ R v CAM , 2017 MBCA 70 ] at paras 34-37; and R v MJB , 2015 ABCA 146 at para 33 , aff’d 2015 SCC 48 ). Accused’s Position Singh [ 34 ] Singh argues that the complainant was very unclear as to many details pertaining to the incident and, in particular, as to his involvement.

She was not clear on details of what occurred as she was regularly blacking out. Regarding the incident which the complainant alleged occurred in the back of the car, the trial judge concluded he was not satisfied that it met the necessary standard of proof, given that she had indicated she was not actually sure that it occurred. Her evidence on actual sexual conduct was also as unclear and the trial judge’s finding was inconsistent with the evidence of the complainant. [ 35 ] In assessing her credibility, the trial judge used the accused’s statements to corroborate the complainant’s evidence.

Singh argues that his statement also corroborates his position that nothing of a sexual nature occurred. Nor did the trial judge acknowledge that Singh gave a statement to the police approximately one hour after learning the police wanted to speak to him. There was therefore no opportunity for fabrication. The trial judge did not address the complainant’s motive to lie. Most concerning, according to Singh, is that the trial judge used the evidence of the Crown’s forensic expert to disbelieve the accused, totally disregarding the possibility raised through her evidence about secondary transfer.

Dhillon [ 36 ] Similarly, Dhillon argues that the complainant’s evidence was given in an unsure manner at trial, where she was mistaken about key pieces of evidence and showed that she had difficulty differentiating between the two accused. She was intoxicated and agreed that her memory was distorted. As well as being under the influence of the prescription drugs that she was taking, she had mixed alcohol and marihuana with these drugs at the time of the incident and she was regularly blacking out. She testified that she had trouble telling what was real and what was not.

She could not remember which of the two males present at the apartment would have removed her pants and she was still under the effects of alcohol, drugs and medication when she spoke to the police, which affected her memory and ability to recall. [ 37 ] On the other hand, Dhillon submits that his evidence was not impeached in any significant way. He argues that the trial judge used the DNA evidence to discredit the statements of the accused in a manner that appears to have shifted the burden onto the accused to explain how the DNA evidence got to its location.

The Crown [ 38 ] The Crown notes that the issues raised by the accused as to why the complainant’s testimony should not have been accepted were argued at trial and considered in the trial judge’s reasons. Its position is that the trial judge was entitled to find the

complainant a credible witness. As his reasons demonstrate, the trial judge was concerned about reliability issues with respect to the complainant’s evidence because of the gaps in her memory. He identified reasons why he was satisfied that he should accept her evidence, including that her evidence, except where sexual activity was involved, was corroborated by the statements of the accused. [ 39 ] The trial judge relied on the location of the DNA evidence in concluding that sexual activity had occurred.

He did acknowledge that the complainant had difficulties telling the men apart and could not identify them with certainty in his finding that he was not satisfied beyond a reasonable doubt as to which accused would have had intercourse with her. His finding that the accused were not credible, based on the presence of their DNA and their evidence that the complainant looked much older than her 14 years of age, was a reasonable conclusion based on the evidence before him. In

summary, the Crown argues that there was nothing in the record or the reasons which suggested that he subjected the evidence of the accused to a higher degree of scrutiny and his findings are reasonable. His decision is entitled to deference. Analysis [ 40 ] I agree with the Crown’s position that neither accused has raised anything that would warrant a conclusion that the trial judge applied a different level of scrutiny to the evidence of the accused than he did to that of the complainant.

He was alive to the difficulties raised by the complainant’s physical condition that day, including her level of intoxication and impairment by drugs, alcohol and medication. He expressed those reservations in his reasons, but also indicated why, in his view, her evidence was capable of being accepted. [ 41 ] The trial judge’s use of the accused’s statements describing events and the apartment to corroborate the complainant’s evidence was appropriate and not to a different standard.

His decision not to accept the statements of the accused based on the DNA evidence present on the complainant and his disbelief of their denial of the knowledge of the complainant’s true age, which was inconsistent with the evidence of the complainant’s friend, are not unreasonable in the circumstances.

His reasons do not display something of such significance so as to warrant a concern that an inappropriate level of scrutiny was applied to the testimony of the accused. [ 42 ] The weighing of evidence and findings of credibility that occur as the trial judge scrutinises the evidence are highly discretionary decisions that are reviewed on a deferential standard ( R v Gravesande , 2015 ONCA 774 at para 19 ): For an appellant to successfully advance this [different level of scrutiny] ground of appeal, she must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge’s credibility assessments . . ..

The issues underlying this ground of appeal were all raised with, and considered by, the trial judge. His conclusions as to credibility, while possibly not the only conclusions, are available on the evidence and are reasonable. In my view, the trial judge did not apply a different level of scrutiny to the evidence of the defence than to the evidence of the Crown in coming to those conclusions. Thus, I would dismiss this ground of appeal.

Inappropriate Weight Given to the Complainant’s Statement and Inappropriate Inferences Drawn from the Complainant and Her Friend’s Appearance in the Video Statement [ 43 ] In these grounds of appeal, the accused argue that the trial judge gave too much weight to the complainant’s evidence and drew inappropriate inferences. It is not disputed that the standard of review for such an error would be one of palpable and overriding error. [ 44 ] Both accused argue that the complainant’s statement, admitted under

section 715.1 of the Code , used leading questions, particularly in areas of examination on sexual activity, which should have led the trial judge to disregard or give little weight to the answers provided by the complainant. Some of the evidence was obtained by the interviewing police officer supplying the words describing genitalia and sexual activity.

The accused argue that the trial judge erred by accepting this evidence without question and not turning his mind to the leading nature of the questions used by the officer. [ 45 ] Singh also argues that the trial judge erred in admitting a photograph of the complainant’s friend, taken around the time of the incident, and using it to infer the complainant’s age and appearance at that time. He argues that the trial judge used that evidence to disbelieve the position of the accused as to the complainant’s young age.

Given that there was no image as to the appearance of either the complainant or her friend on the day in question, it was an improper inference to draw. In his submission, this evidence should not have been admitted at trial and the reasoning followed by the trial judge constituted an error in law. [ 46 ] The Crown submits that, while the use of leading questions with a child witness may lead a trier of fact to give the child’s evidence less weight, it does not invariably do so.

A trial judge has discretion to permit counsel to use leading questions and, in the case at bar, the questions were simply used to facilitate the child’s ability to tell the officer what happened.

The Crown argues that the questions were open-ended and the entire statement shows that the complainant was not being led by the officer, noting that she disagreed with some suggestions made to her where she did not wish to accept the questions being posed. [ 47 ] As to the introduction of the photograph, the Crown argues that the trial judge did not err in admitting the still photograph or by relying on the appearance of both the complainant and her friend in their videotaped statements when assessing the accused’s assertions that they believed the complainant to be much older than she actually was.

Analysis [ 48 ] It is to be noted that the argument challenging the statement on the basis it contained leading questions was not made before the trial judge on the application to admit the videotaped statement under

section 715.1. Perhaps that would have raised the issue for the trial judge at the time and allowed him to disregard portions of the statement if he accepted the argument advanced by the accused.

[49] After review of the statement, particularly the portions relating to the assistance provided by the police officer inaddressing the area of sexual activity, I see no error, especially not a palpable and overriding one, which would justify appellateinterference. The questions posed by the officer were not leading the complainant to answer in any specific fashion but were simply toassist her to provide the information. [50] As to the admissibility of the complainant’s friend’s photograph, the trial judge accepted the friend’s evidence that shewas present with the complainant at the mall.

There was an issue concerning the accused’s belief as to the age of the complainant. Aphotograph taken close in time to the incident would certainly have relevance to that issue. The complainant’s appearance was alsorelevant to the accused’s defence of mistake of age. I agree with the Crown that there was nothing to suggest that the complainant’sappearance in her videotaped statement was different than at the time of the incident.

Therefore, the learned trial judge was entitled tomake his own observations of her appearance to assess the accused’s credibility on the issue of whether it was reasonable to believe thatshe was a university student. [51] In my view, there was no palpable and overriding error and I would dismiss these grounds of appeal. Failing to Admit the Second Statement [52] The Crown introduced the statements of the accused given to the police in April and May of 2013, which statementswere given prior to the accused’s DNA samples being taken and compared to the complainant’s samples previously in the hands of theRCMP.

Upon receipt of the second report from the RCMP, whereby the DNA was matched, each accused was re-interviewed by thepolice and gave a second statement. In those second statements, the accused did not veer from the position taken that no sexual activityhad taken place.

The statements were taken by a different police officer than the one who had taken the first statements and occurredroughly a year after the taking of the first statements. [53] The accused sought to have the second statements tendered as part of the Crown’s evidence on the basis that the “entirestatement” should be tendered and that they were only a continuation of the first ones. Singh relies on R v Kazenelson, 2015 ONSC 477. [54] The trial judge issued a ruling on the admissibility of the second statements at the midpoint of the trial.

He concludedthat the second statements were not so closely related to the first that they were part of one statement. He reached his conclusion becauseof the time factor between the two statements (approximately a year), but also because the DNA results were an interveningcircumstance. He noted that there was a different officer conducting the second interviews and that the second interviews wereexculpatory in nature.

Finally, he concluded that there was no unfairness in not allowing the second statements. [55] In determining whether statements fall within the “entire statement rule”, which is to be based on fairness and commonsense, the trial judge should consider factors such as the time gap between statements, the nature and form of the statements, and thecircumstances under which they were made in assessing their admissibility (Kazenelson at paras 11-12; see also R v Cybulski, 1974CarswellMan 137 (CA)). [56] I see no error—certainly not a palpable or overriding one—in the trial judge’s conclusion that the second statementswere not part of one entire statement.

I would dismiss this ground of appeal as well. Misapprehension of the Evidence Leading to an Unreasonable Verdict [57] The strongest argument advanced by both accused to infirm their convictions is that the trial judge misapprehended theDNA evidence, more specifically, how it related to the presence of sperm and the possibility of transference, leading to a miscarriage ofjustice. They argue that he compounded this error by improperly applying the law regarding circumstantial evidence.

As a result, theysay that the verdict is unreasonable and not supported by the evidence. [58] They also argue that the possibility of transference and the frailties in the complainant’s evidence further add to theunreasonableness of the verdict. Standard of Review [59] In the leading decision of R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA), Doherty JAexplained how a misapprehension of evidence leading to a miscarriage of justice can lead to an unfair trial (at p 221): . . . Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and isnot a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmerfoundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that theconviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial,and was the victim of a miscarriage of justice.

This is so even if the evidence, as actually adduced at trial, was capable of supporting aconviction. [60] The Supreme Court of Canada, in R v Lohrer, 2004 SCC 80, provided further context as to how such an allegationshould be handled from an appellate perspective (at para 2): . . . The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral tothe reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctiverather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in thereasoning process resulting in a conviction”. [61] In R v Hall, 2018 MBCA 122, Mainella JA reviewed the standard of review for an unreasonable verdict incircumstantial cases (at paras 164-66):

The standard of review of the reasonableness of a jury’s verdict under section 686(1)(a)(

i) of the Criminal Code is ‘whether the verdict isone that a properly instructed jury acting judicially, could reasonably have rendered’ (R v Yebes, (SCC), [1987] 2 SCR168 at 185).

To apply this standard, the reviewing court considers and, to some extent, re-weighs the evidence and its effect through thelens of judicial experience with due regard to the jury’s assessment of the evidence because, in our system of justice, the responsibilityfor fact finding lies with juries who enjoy the advantage of hearing the evidence firsthand and assigning weight to it through theircollective wisdom (see Yebes at p 186; R v Biniaris, 2000 SCC 15 at paras 36-40; and R v WH, 2013 SCC 22 at paras 26-29).

Where a verdict depends on circumstantial evidence, the reviewing court must assess the reasonableness of the jury’s use of inferentialreasoning. Cromwell J explained in R v Villaroman, 2016 SCC 33, that can be done by determining “whether the trier of fact, actingjudicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of theevidence” (at para 55). See also R v Robinson, 2017 BCCA 6 at para 38, aff’d 2017 SCC 52 (Robinson 2017); and R v Youssef, 2018SCC 49. Deference plays an important

part in evaluating the inferential reasoning of the jury. The reviewing court does not draw its owninferences; rather, it considers whether the inferences drawn by the jury were “reasonably open” to it in light of the standard of proof(Villaroman at para 67).

Drawing the line between inferences that are speculative and those which give rise to a reasonable doubt is theresponsibility of the jury alone (see Villaroman at para 71). [62] An appellate court should not lose sight, when performing its review of the reasonableness of a verdict and anallegation of misapprehension of evidence, that a trial judge’s inferences are entitled to significant deference (see R v MacLeod (JM) etal, 2013 MBCA 48 at para 16; and R v Fenske (HB), 2016 MBCA 117 at para 7).

Accused’s Position [63] The accused do not truly question that the DNA which was extracted from the samples tested was theirs. Rather, theyargue that the evidence of the Crown’s forensic expert elicited by them on cross-examination was to the effect that any of their DNAfound could have made its way there innocently by virtue of the fact that the complainant lay in the beds of each accused. As well, shemay have used household items, such as towels, from which their DNA could have been transferred.

They state that the possibility thatthe DNA of each accused was placed there by transference as opposed to sexual activity was consistent with the evidence of the Crown’sforensic expert.

They argue that the conclusion drawn by the trial judge that the DNA was semen and that it was there as a result ofejaculation by both accused was not the only inference that could be drawn from the evidence before the trial judge. [64] The accused argue that this was a circumstantial evidence case and that, pursuant to R v Villaroman, 2016 SCC 33, andon the evidence of the Crown’s forensic expert, the trial judge could not be satisfied beyond a reasonable doubt that the DNA was notthere as a result of transference. [65] They argue that the trial judge’s reasoning was affected by his misapprehension of the forensic evidence which wasmaterial to his decision.

He mischaracterised the DNA found on the samples as semen and then used that conclusion to corroborate thetestimony of the complainant that sexual activity had taken place. Without the improper inference drawn by the trial judge that theforensic evidence supported the conclusion that sexual activity had occurred, the verdict was unsupported by the evidence and wasunreasonable. The Crown’s Position [66] The Crown’s position is that the trial judge did not misstate the evidence or fail to consider or give legal effect to it.

Itargues that he just drew different inferences from the evidence than those suggested by the accused and that those inferences are entitledto significant deference. The Crown argues that the trial judge correctly stated the evidence related to transference, but simply did notaccept that it explained how the DNA ended up where it was found on the complainant. In the Crown’s view, the location of the DNAevidence on the complainant is significant. The Crown also argues that the DNA evidence must be assessed with the other evidence inthe case, including the complainant’s evidence.

In a circumstantial case, evidence ought not to be considered in a piecemeal fashion andeach individual piece does not need to be proven beyond a reasonable doubt. Analysis [67] The trial judge was alive to the limitations of the forensic evidence. In his reasons, he points out what were the salientaspects of the Crown’s forensic expert’s evidence which the defence had drawn out in cross-examination. He noted that she could notprovide testimony as to how the DNA got to where it was found and that it could be found on bedsheets.

He acknowledged that shecould not say if there was a secondary transfer and that it was possible that DNA could have been present as a result of sleeping in aperson’s bed. He acknowledged that the amount of DNA that was quantified was small and that DNA can persist for quite some time. Finally, he acknowledged her evidence that there was no DNA on the vaginal swab and one could not tell the source nor the time that theDNA was deposited. [68] The trial judge explained why he concluded that the presence of the semen of both accused on the complainant was nota result of transferring from bedsheets.

Part of his reasoning was the evidence of Dhillon that he slept in his own bed that night, notSingh’s, and that he had been absent from the apartment for two weeks previously. In the case of Singh, the DNA was found at fourdifferent locations on the complainant yet his evidence was that he did not sleep in the room that night. [69] I agree with counsel for the accused that, in and of itself, the evidence of the presence of the DNA was not sufficient to

conclude that sexual activity had taken place. However, this is not, as contended by the accused, a circumstantial case. There was other evidence before the trial judge supporting the conclusion that sexual activity had taken place that evening. That was the evidence of the complainant. It was therefore incumbent on the trial judge to review the evidence of the Crown’s forensic expert in the context of the other evidence in the case.

It could not be considered in a vacuum ( see R v Cabrera , 2019 ABCA 184 , aff’d 2019 SCC 56 , where Fraser CJA, for the majority, said: “However, reasonable doubt is not ‘to be tested piece-of-evidence by piece-of-evidence . . . especially where circumstantial evidence is involved’ . . .. Thus, the circumstantial evidence cannot be delinked from the direct evidence on identification” (at para 164). [ 70 ] In a similar vein, an assessment of the reasonableness of a verdict requires the consideration of the evidence in its totality rather than in a piecemeal fashion.

On the facts of this case, it would be inappropriate to isolate the evidence on transference and reach a conclusion as to the reasonableness of the decision only on the basis of that evidence.

It is necessary to consider the DNA evidence together with the complainant’s evidence, with all its frailties, to determine if it was reasonable for a trier of fact to come to a conclusion of guilt. [ 71 ] In Hall , a decision closer to home, where this Court had to consider DNA evidence, Mainella JA noted, “Like any piece of circumstantial evidence, the probative value of DNA evidence depends on assessment of the totality of the factual matrix in the case” (at para 152). [ 72 ] The accused rely on the decision of R v JS , 2018 ONCA 39 .

In that case, the Ontario Court of Appeal overturned a jury’s conviction of sexual assault in part because of the improper use of forensic evidence relating to a DNA sample. The forensic evidence in that case did not identify the bodily fluid being the source of the appellant’s DNA on the complainant’s underwear. It was potentially consistent with both the Crown and defence theories of how it arrived there, the defendant’s being an innocent one.

However, in that case, what occurred was the Crown mischaracterised the forensic evidence in its address to the jury to the point that the framing of the evidence was inaccurate and overstated in a significant way.

While that alone would distinguish the case from the one before us, it was also noted (at para 76): It was open to Crown counsel to suggest to the jury that the presence of the appellant’s DNA on the complainant’s underwear was a piece of circumstantial evidence to consider, along with all of the other evidence elicited at trial, and to conclude that the Crown had proven the appellant’s guilt of the offence beyond a reasonable doubt. . . . [emphasis added] In

summary on this issue, the trial judge did not misinterpret or misapprehend the evidence. He appreciated the limitations but concluded that transference was not the source of the presence of the DNA given where it was found. This was a conclusion which could reasonably be reached on the evidence before him. The circumstantial evidence test set out in Villaroman was inapplicable in the circumstances of this case. There was evidence available to the trial judge such that he could reasonably conclude that the sexual assaults had taken place.

Was the Sentence Unduly Harsh or Did the Trial Judge Err by Classifying the Incident as a Major Sexual Assault? [ 73 ] As in any other sentence appeal, the standard of review to be applied by an appellate court is that, absent an error in principle having a material impact on the sentence or the imposition of a sentence that is demonstrably unfit, an appellate court will not intervene ( see R v Lacasse , 2015 SCC 64 ). Position of Singh [ 74 ] Singh was sentenced on the basis of having been involved in a serious sexual assault.

He argues that findings of fact relating to his conduct are difficult to discern from the trial judge’s reasons and must result in the lowest level of offending conduct. He is a low risk to reoffend and had positive letters of reference. He had no criminal record and, given that he was in Canada on a work visa, the conviction and resulting sentence will result in immigration consequences, most likely deportation. He argues, in the circumstances, the sentence of three years is harsh.

Position of Dhillon [ 75 ] Similarly, Dhillon argues that the trial judge failed to articulate sufficient reasons for the sentence imposed. He failed to give reasons why this was a major sexual assault and could not find that sexual intercourse took place. Nor did he make findings that are consistent with a major sexual assault having occurred. Position of the Crown [ 76 ] The Crown’s position is that, when taking all the evidence of what occurred into consideration, the trial judge was entitled to find that the sexual assault was serious.

Sexual intercourse was not required to characterise an offence as a major sexual assault ( see R v TLG , 2006 ABCA 313 ). Given the relatively young age of the complainant and her level of vulnerability at the time of the incident, the fact that the trial judge could not determine that sexual intercourse had taken place did not lessen the moral culpability of the accused. Analysis

[ 77 ] In his reasons for sentence, the trial judge was aware of the circumstances of both accused and recited them. Despite the fact that he did not conclude that sexual intercourse had taken place, he did find that both accused had been involved in sexual activity with a highly intoxicated and vulnerable 14-year-old girl and that the activity to which she was subjected would likely cause her to suffer serious or lasting emotional or psychological harm. A sentence of three years is not demonstrably unfit in all the circumstances of this case and I would therefore not allow the sentence appeal.

Conclusion [ 78 ] For these reasons, I would dismiss the appeal against both the conviction and the sentence of each accused. JA I agree: JA I agree: JA