R. v. Vella, 2011 ONCJ 783

COURT FILE No.: 10/17029 Citation: R. v. Vella , 2011 ONCJ 783 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FRANCESCO VELLA Before Justice Gregory A. Campbell Heard October 19, 20 and 21 and November 21, 2011 RULING – Released December 13, 2011 L. Joy ................................................................................................................. for the Accused S.

Kerwin .............................................................................................................. for the Crown CAMPBELL J.: RULING THE PROCEEDING : [ 1 ] This Ruling concerns the admissibility of evidence offered by the prosecution concerning the identification and detection of semen on fabric belonging to the complainant in this sexual assault trial. BRIEF

SUMMARY OF MATERIAL FACTS: [ 2 ] The complainant was a pharmacy technician completing an internship at the accused’s pharmacy when she alleges that she was forced to masturbate the accused until he ejaculated in the basement of the pharmacy. The police collected her clothing. Her pants, referred to as scrubs, were sent to the Centre for Forensic Sciences in Toronto for analysis. [ 3 ] Brian Peck is a Forensic Scientist with the Centre for Forensic Sciences in Toronto.

He was qualified on consent as an expert witness able to provide opinion evidence in regard to his analysis, findings and conclusions in regard to a stain deposit identified on the complainants scrubs. Following his analysis of four separate tests, the particulars of which I will review below, Mr. Peck concluded that there was evidence of semen detected on the right inner thigh area of the fabric. Mr. Peck was not able to indicate who the donor was, when the semen stain was deposited or how it was deposited to the fabric. [ 4 ] The defence argued that the conclusion reached by Mr.

Peck is suspect because he was inconsistent in reaching his ultimate conclusion. To this end reference was made to a preliminary comment by Mr. Peck about a negative finding on one test, the P- 30 test, together with the fact that only one sperm cell was identified following a microscopic examination of a piece of the fabric. The foregoing, together with the inability of Mr. Peck to be able to indicate who’s DNA was on the fabric or how or when the DNA was deposited there, forms the basis for the assertion that Mr.

Peck’s opinion about seman found on the scrubs has no probative value or that any value is so limited that it is outweighed by its prejudicial effect. The defence did not call any evidence on the voir dire . THE EXPERT TESTIMONY: [ 5 ] Four separate testing procedures were undertaken at the Centre for Forensic Sciences. An A.P. Test involved placing a special paper over the area of the fabric being analyzed and spraying it with water and then applying a special chemical. The paper and cloth was then pressed with Plexiglas in an effort to determine if the paper would discolour. Mr.

Peck indicated that where the paper takes on a purple colour of moderate to strong tone within 30 seconds of testing, this would be evidence of semen. In this case, a moderate to darker purple colour appeared within 20 seconds followed by a strong purple colour at 25 seconds. He stated that the A.P. Test was positive or indicative of a semen stain. [ 6 ] However, a P-30 Test, used to identify a prostate specific antigen, was negative. Mr. Peck explained that the P-30 Test involved taking a small cut-out (5 mm x 5 mm) of the stained fabric from the complainant’s scrubs.

That piece of fabric was then placed in a tube and mixed with a chemical in an effort to identify the prostate specific antigen. Mr. Peck stated that the negative result was not

only inconsistent with the A.P. Test but also surprising. He offered a couple of explanations for the inconsistency, including thepossibility that the donor had a genetic mutation that limits the production of certain proteins; or, a procedural error in the lab associatedwith taking the cut-out from the fabric which failed to include a complete

section or sampling of the stained area. Mr. Peck explained.He stated that from the outset and before any testing, a technician in the lab would have mapped out the area to be tested with a piece ofpaper before undertaking the AP Test. That paper mapping is then re-applied for the purpose of taking a cut-out that is used for the P-30Test and subsequent microscopic examinations. Mr. Peck stated that it was entirely possible that the cut-out did not include the entire APTest positive area. Dr.

Peck indicated that a minimum amount of positive area is required for the P-30 Test to detect the specific antigenand it may have been missing when they did that test. [7] A third test or examination was simply to look at the cut-out fabric under a microscope. This examination resulted inone sperm cell being identified which Mr. Peck said was conclusive proof that semen was present on the fabric.

He did not deny thatidentifying only one sperm cell in and of itself could be indicative of laundry transfer such a conclusion was not consistent with the A.P.test which clearly showed a very high reading indicative of semen. [8] A fourth test – a D.N.A. analysis – was undertaken from the original cut-out. A chemical was mixed with the fabricand the solution spun in an effort to allow the epithelial cells to be separated from sperm cells. In the result female D.N.A. was identifiedas the vast majority of the D.N.A. found in the cut-out that was analyzed.

However, there was evidence of male D.N.A. as well but thesample was of such a small amount that it was not sufficient for comparison for the purpose of identifying a donor. He said they thenreturned to the fabric and made a second cut-out outside of and around the area of the first cut-out in an expanded area that this timemeasured ten centimetres, and lifted that fabric and conducted a further D.N.A. test. This time, the majority of the D.N.A. found withinthe epithelial profile was male D.N.A. Mr.

Peck testified that while there was insufficient D.N.A. to do a comparison profile foridentification purposes, the D.N.A. sperm fraction that was separated from the epithelial cell was significant as it had a Picogram counthe described as a measurement indicative of having no less than 35 sperm cells to as many as 150 sperm cells within the male sperm cellfraction. [9] Much was said about an earlier memo between Mr. Peck and an Assistant Crown Attorney, which pre-dated Mr.

Peck’sfinal report, wherein he indicated that the results of the tests were inconclusive based on the P-30 finding and the single sperm cell foundunder the microscope. Mr. Peck testified under cross-examination that this was a preliminary remark made before he had reviewed andanalyzed the entirety of the tests. Notwithstanding persistent cross-examination on this point, Mr. Peck’s testimony remained consistentthroughout. He stated unequivically that the results of the A.P.

Test, the microscopic examination identifying the single sperm cell andthe subsequent D.N.A. test from the larger cut-out identifying no less than 35 sperm cells within the male D.N.A. fraction wasconclusive proof of semen detected within the fabric. ANALYSIS: [10] The general rule for admissibility is that if the evidence is relevant then it ought to be admissible unless receiving thatevidence would contravene an exclusionary rule or its probative value is outweighed by its prejudicial effect. [11] The defence argued that the proposed evidence has no probative value essentially because Mr.

Peck could not indicatefrom all the testing who the semen belonged to, when it was deposited or how it was deposited. Reliance was placed on the case of R. v.Bennett (2003), (ON CA), 67 O.R. (3d) 257 (C.A.) where the accused appealed his conviction for first degreemurder on several grounds, including an error in admitting trace D.N.A. evidence from the scene of the killing on the basis that it wasnot probative but prejudicial. Mr. Bennett was charged five years after the murder. There was no independent witness who could placeMr. Bennett at the crime scene.

There was evidence that he had been to the victim’s home as an acquaintance previously and as recent asa week prior to the murder. The circumstantial evidence relied on by the prosecution included scalp and pubic hairs, some of whichrevealed a D.N.A. match to the appellant and some of which showed microscopic similarities to his hairs that were found on the victimsbed clothes and on and near the body which was found lying naked on a carpet floor. Some of the hair was described as having so-called“negroid” characteristics and the appellant was the only black suspect.

One of the prosecution witnesses testified that she was in thevictim’s apartment a week earlier when the appellant was present. They had been drinking and the appellant was sitting on the bed nextto the victim. Nevertheless, none of the witnesses testified to seeing the appellant at or near the victim’s apartment near the time of themurder. Twenty identifiable fingerprints were found in the apartment. The appellant’s fingerprints were found on a bottle of liquor inthe cupboard and nowhere else. Two Hundred and Ninety-two human hairs were found in the apartment.

Thirteen hairs showeddifferent levels of microscopic similarity to the appellant’s known hair samples. Unknown scalp hairs shared some characteristics withthe appellant’s sample and could not be eliminated as having originated from the appellant.

Some unknown body hairs also shared somebut not all microscopic characteristics which could not be eliminated as having originated from the appellant. [12] The Court of Appeal ruled that the trial judge erred in admitting hair comparison evidence from an expert witness,concluding that the trial judge admitted that evidence on the basis it was relevant for the purpose of establishing the identity of thekiller. The inference going to identity was that the finding of the hairs in various locations that belonged to the appellant supported theinference that the appellant was the killer.

The Court of Appeal identified several concerns with the trial judge’s ruling including, but notlimited to, a concern that the trial judge’s analysis concluded that the negroid characteristics of certain hairs increased their probativevalue. However, the evidence did not establish that the victim did not have any other black acquaintenances. [13] The Bennett case is clearly distinguishable. It was a circumstantial case concerning the conviction of a person chargedfive years after the killing and without any evidence placing the appellant at the scene at the time of the killing.

Moreover, any concernin regard to the probative value was clearly outweighed by the prejudicial effect that might result based on the finding that some of thehair samples had characteristics closing connecting them to a black person and not only was Mr. Bennett black, it had not been proventhat no other black person had not been in the apartment on the night in question. [14] The defence also relied on the decision of R. v. Archer (2005), 202 C.C.C. (3d) (O.C.A.). Mr. Archer appealed from hisconviction on charges of sexual assault.

The appellant sought to introduce fresh evidence to support his assertion that he receivedineffective assistance from his lawyer at trial. Affidavit material filed on the appeal raised a number of concerns and included theassertion that a report from the Centre for Forensic Sciences containing an analysis of semen found on a pair of the complainant’s

underwear provided exculpatory D.N.A. evidence. The Archer case is of little assistance. It provides no guidance in regard todetermining the relevance or admissibility of D.N.A. evidence in similar circumstances.

In addition to the court ruling that the reportfrom the Centre for Forensic Sciences was inadmissible hearsay and did not meet the criteria for the admissibility of fresh evidence, thecourt went on to say the evidence would not have been admissible under the traditional criteria for admitting fresh evidence in any eventinsofar as it could not reasonably be expected to have any effect on the result. [15] It would not have had any effect on the result of the trial because the report at issue identified a trace amount of semenfound on the underwear of the complainant that contained two spermatozoa which could not be identified.

In this regard, the reportindicated that it was possible for a small number of spermatozoa to be deposited on clothing through innocuous means such as launderingwith semen stained garments. Therefore, there was no conclusive

interpretation that could be made regarding the manner of deposit orthe significance of the spermatozoa identified in the crotch area of the underwear. The case is clearly distinguishable having regard to theissues on appeal and the reasons for its dismissal. [16] In Mr. Vella’s case, Mr. Peck was clear in his conclusion that there was clear evidence of semen detected on the fabricwhich included a sufficient number of sperm cells that went beyond what could reasonably be explained as laundry transfer.

While Mr.Peck agreed laundry transfer could have been the explanation insofar as the single sperm identified from the initial microscopicexamination is concerned, such a finding could not be supported from the entirety of the testing that was undertaken including themicroscopic exam, the A.P. test and the subsequent D.N.A. analysis having a picogram count equivalent to no less than 35 sperm cells oras many as 150 sperm cells within the male sperm cell fraction. [17] While it is true that Mr.

Peck could not say who the semen belonged to or when it was deposited or how it ended up onthe complainant’s scrubs, there can be no doubt from the testimony of Mr.

Peck that the stain not only contained male D.N.A. but there isuncontroverted and conclusive proof that there was semen detected on the fabric, being the scrubs that the complainant said that she waswearing at the time of the alleged offence. [18] As I indicated from the outset, it is a general rule of evidence that information relevant to an issue in a proceeding may beadmitted subject only to an exclusionary rule for example hearsay, which does not apply here. The only issue for determination iswhether the finding of semen on the scrubs is lacking in probative value.

I heard no submissions in regard to prejudicial effect other thanperhaps the inference that prejudice is a corollary or necessarily follows if the impugned evidence is lacking in probative value. [19] Relevance is determined by its relationship to an issue in the proceeding. It can only be fully assessed in the context ofother evidence at trial (R. v. Blackman, 2008 SCC 37 , [2008] S.C.J. No. 38).

To this end, the complainant testified about howafter rejecting the accused’s advancements he placed his right arm behind her back, pulled her toward him and with his left hand grabbedher right hand and placed it on his penis which was exposed through the zipper of his pants. He then used her hand to masturbate until heejaculated on her hand, and a nearby table and the floor. [20] Mr. Peck testified that the semen stain examined was located on the right inner thigh of the complainant’s scrubs whichthe complainant testified she was wearing at the time.

The evidence is clear that not only was male D.N.A. located on the scrubs butmore importantly there was conclusive evidence of semen found in the location. The actus reus of the offence, touching and of a sexualnature, is a relevant and necessary consideration in this trial. As was stated by Professors Paciocco and Streusser in The Law of Evidence (4th ed. 2005) at page 29 (quoted in R. v. Blackman, 2008 SCC 37 , [2008] S.C.J. No. 38 (S.C.C.): To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue.

Theevidence must simply tend to “increase or diminish the probability of the existence of a fact in issue.” Accordingly, it is important to appreciate that it is only threshold relevance that I need be concerned with on this voir dire, and thatrelevance can only be fully assessed in the context of the other evidence at trial. (See R. v. Blackman, supra) [21] It is therefore apparent to me that notwithstanding the legitimate concern about Mr.

Peck’s inability to be able to identifywhose D.N.A. was on the scrubs, the presence of semen on the scrubs cannot be looked at in isolation and must be considered in thecontext of all the evidence to this point of the trial, and that includes a consideration of the complainants testimony on this point and thepolice officers who took possession of the scrubs and forwarded same to the Centre for Forensic Sciences for analysis. [22] While the penultimate issue was one of relevance, the ultimate question is whether or not the evidence of semen detectedon the fabric has probative value.

As I indicated, there is no exclusionary rule that would prevent this evidence from being admitted. The only argument advanced is that it is lacking in sufficient probative value. Some of my remarks to this point addressing the issue ofrelevance have equal application here. Probative value cannot be looked at in isolation or solely based on the evidence adduced from theexpert witness. The finding must be considered in the context of the entirety of the evidence adduced at trial to this point and moreimportantly in regard to the issues for consideration at trial. [23] In Morris v.

The Queen, (SCC), [1983] 2 S.C.R. 190, the Supreme Court of Canada said that the test forprobative value is low and that it is sufficient for the court to find that the desired inference to be drawn is more probable with theevidence than it would be without the evidence. [24] Counsel for the defence had much to say about the small number of sperm cells identified, insofar as the normal ejaculatecontains hundreds of millions of spermatozoa. Notwithstanding this argument, I have already indicated that the evidence of Mr. Peckwas uncompromised.

His unequivocal conclusion is that from all the testing and analysis undertaken, there is clear evidence of sementhat was found on the scrubs that the complainant said she was wearing at the time of the alleged offence. The desired inference to bedrawn is that the complainant is a credible witness whose story suggests that it is more probable that the semen stain was deposited in thecircumstances described by her rather than through some other manner, such as a laundry transfer. [25] As stated by the court in R. v. Jacobson, [2009] O.J.

No. 522 (C.A.), “No single piece of evidence bears the ultimateburden of proof.” The proposed evidence is only one piece of the evidence to be considered during the trial. The fact that the D.N.A.

testing cannot be specifically linked to Mr. Vella does not diminish its probative value. In addition to assisting the trier of fact in regard to the actus reus of the offence, the impugned evidence tends to assist the court in addressing the issue of the complainant’s credibility as a witness in this proceeding. I can find nothing in the way of prejudice to the accused. The evidence is not being proffered to prove that it is Mr. Vella’s D.N.A. that was found on the scrubs. To the contrary, the expert’s testimony was clear. He could only say that the testing confirmed the presence of semen. Mr.

Peck could not identify the DNA as belonging to any particular individual, including the accused. [ 26 ] I am not only satisfied as to the threshold of reliability, it is clear that there is probative value associated with this evidence as it tends to assist the trier of fact in addressing the actus reus of the offence and the credibility of the complainant and to my mind there is nothing prejudicial to the accused.

The evidence of semen detected on the complainant’s scrubs does not bear the ultimate burden of proof but will be received as admissible evidence to be considered with the whole of the evidence adduced during this trial. Released December 13, 2011 Gregory A. Campbell Justice