R. v. W.S., 2024 ONCJ 35

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. W.S. , 2024 ONCJ 35 DATE: 2024-01-18 COURT FILE No.: Simcoe – 2611-998-21-1194-00 ONTARIO COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING — and — W.S.

Before Justice R. Blouin Heard on November 16, 2023; December 5 and 19, 2023; January 11 and 12, 2024 Reasons for Judgment released on January 18, 2024 Ed Slater ............................................................................................... counsel for the Crown Katie Heathcote .................................................................. counsel for the defendant, W.S. BLOUIN J.: Overview [ 1 ] W.S. stands charged with three sexual offences relating to his underage stepdaughter, S.A.

They include: Sexual Assault, Sexual Interference and Indecent Exposure. [ 2 ] The Crown called five witnesses: the complainant, S.A.; her mother, L.A.; her brother, M.A.; a DNA expert; and a sexual assault and domestic violence nurse. The defendant did not testify nor did the defence call any evidence. [ 3 ] It was obvious that the complainant was under the age of 16 at all relevant times so as to make consent a non issue. Ms.

Heathcote focused on inconsistencies, and incongruities, in the complainant’s account to submit that a reasonable doubt as to its veracity had been created, and as a result, the Crown has failed to prove guilt beyond a reasonable doubt.

The Complainant [ 4 ] S.A. gave evidence of sexual abuse perpetrated on her by the defendant, her stepfather, over a period of three to four years, spanning the years when she was 12 to 15 years of age. [ 5 ] On the morning of December 16, 2021, a month before the complainant’s 16th birthday, her mother, L.A., entered S.A.’s bedroom to find her daughter and the defendant in bed together. When L.A. pulled the covers off, S.A. was naked, and so was the defendant. Understandably, S.A.’s mother began screaming about what she observed. The defendant got out of bed, recovered his clothing and left the house with L.A.

S.A. believed that her brother, M.A., whose bedroom was across the hall, arrived at the door as the defendant was leaving. [ 6 ] S.A. recounted that she wore a T-shirt and shorts to bed that night. The defendant entered her room around 10:00 to 11:00 p.m. He removed her clothing and they engaged in intercourse. She then was asked if that was the only sexually inappropriate incident with W.S. S.A. then related a history of abuse, starting with penis exposure when she was eight, and losing her virginity to him when she was 12.

When asked if intercourse happened again after that, she replied it would be a routine, everyday thing that the defendant would engage in vaginal and oral sex with her, either in her bedroom or in the garage. [ 7 ] S.A. was also asked about pregnancy concerns. She related that the defendant would always ejaculate on a towel and that he requested her to use birth control. The defendant told her that she should not tell anyone. He threatened to take S.A. and her sisters away, saying that he would kill himself if she disclosed.

S.A. also felt that her mother would have thought differently about her and that the family would hate her if anyone found out. [ 8 ] The bedroom door had apparently not been locked the night of December 15. S.A. indicated that the defendant would always lock the bedroom door when he entered her bedroom. He must not have done so that night. [ 9 ] When S.A.’s mother returned later that morning, she took S.A. to the Brantford General Hospital for a sexual assault examination.

Just before that, as a result of her brother M.A. phoning the police, S.A. gave a statement to a police officer essentially indicating that nothing sexual had occurred and that the defendant had never touched her inappropriately. [ 10 ] The next day, December 17, S.A. was taken to the police station by her mother to provide a more formal videotaped statement where she disclosed a bit more including the exposure incident when she was eight and the loss of virginity to the defendant when she was 12. [ 11 ] S.A. admitted in court that on both police statements in December, she did not tell the complete truth.

She was frightened and wasn’t ready to disclose at that time. She had been sleeping just hours before police questioned her at home and her mother had “dragged” her to the police station on December 17. It wasn’t until October, 2022 that she felt ready to discuss all that had occurred. She had spoken to friends and family, given it some thought, and was, at that time, ready to speak truthfully to the police. L.A. [ 12 ] L.A. met the defendant online in 2013 and moved in with him along with her three children. They had three more children

together during a period where the family moved themselves many times, eventually to the address in [place name removed]. [ 13 ] On December 16, 2021, she was awakened in the early morning hours by a message that her grandfather had passed away. The defendant was not in her bedroom in the basement, as he rarely slept there, so she went to find him. The defendant had a habit of sleeping on a couch or in the garage. Some time after 6:00 a.m., she entered her daughter S.A.’s room and discovered the defendant and S.a. in bed together.

She pulled off all of the covers to find S.A. naked and the defendant wearing only black jogging pants that were “down to his knees”. She yelled at the defendant “get the fuck out of my house”. The defendant protested that nothing had happened, but left the house in a vehicle driven by L.A. [ 14 ] Shortly after, her son M.A., hearing the yelling, entered the room. At that point, L.A. decided to put the defendant’s clothes into a bag and told him that she was taking him to his parents’ house. Instead, she drove him directly to the police station in Tillsonburg.

When the defendant realized what she was doing, he told her the next time she would see him would be at his funeral. [ 15 ] When L.A. returned home, the police and S.A.’s father were already there. S.A. told her that either nothing happened, or that she did not remember. L.A. took S.A. to the hospital in Brantford later that morning to do a “rape kit”. [ 16 ] When L.A. was asked about S.A. and birth control, she testified that the defendant always seemed keen to ensure S.A. was using birth control. In the prior two years, the defendant broached that subject with L.A. on at least ten occasions.

When asked about the lock on S.A.’s bedroom door, L.A. testified that the door was locked whenever S.A. was in her room. However, it was not on the morning of December 16. L.A. also indicated that her practice was to go to bed around 8:00 to 8:30 p.m. without the defendant, who almost always slept somewhere else in the house. She estimated that in the last one and a half years they lived in the [place name removed] house, he slept with her only ten times. M.A. [ 17 ] M.A. (16) awoke on December 16, 2021, to his mother screaming.

When he entered his sister’s room, he observed the defendant with his pants at a level of the centre of his buttocks where his pubic area, but not genitals, could be seen. He soon thereafter phoned his father and the police. When asked if he ever heard any noise, he indicated that he fell asleep most nights with headphones on and didn’t hear anything unless it was very loud. He remembered the defendant had been in his sister’s room “quite a bit” and that the defendant never slept in his, M.A.’s room. Heather Shacker [ 18 ] Ms. Shacker is a forensic biologist employed by the Centre of Forensic Sciences.

On consent, she was declared an expert on DNA

interpretation and analysis. She prepared three Biology Reports: April 4, 2022 (Exhibit 2), June 1, 2022 (Exhibit 3) and September 8, 2022 (Exhibit 4). [ 19 ] She analyzed two swabs that were taken at the hospital on December 16, 2021. She had obtained a DNA profile from S.A., and one from the defendant who had provided it on consent. She compared the DNA profile against genetic material that was obtained by samples taken by the Sexual Assault nurse.

Item 2-1 was an external genitalia swab from S. and Item 4-1 was a vaginal swab from S. [ 20 ] The first examination was of a mixture of male and female DNA obtained from the external genitalia swab. (Mixture 1 in the report.) Ms. Shacker concluded that W.S. cannot be excluded as a contributor to Mixture 1. In fact, the DNA results are estimated to be 130 times more likely if they originate from W.S. and S.A. than if they originate from S.A. and one unknown person unrelated to W.S. [ 21 ] And secondly, W.S. cannot be excluded from another comparison, this time of a male-specific (Y-STR) DNA profile.

The Y- STR DNA results for the external genitalia profile swab are estimated to be 2,070 times more likely if they originate from W.S. than if they originate from an unrelated unknown male. Similarly, regarding the vaginal swab, the Y-STR results are estimated to be 920 times more likely if they originate from W.S. than if they originate from an unrelated unknown male. [ 22 ] Ms. Shacker was unable to detect whether semen was present in either the external genitalia swab or the vaginal swab. The best she could say was that the DNA testing discovered bodily fluids which could be blood, semen or saliva.

The DNA could also have been deposited by skin cells. [ 23 ] Ms. Shacker also offered an opinion that the standard practice to obtain a vaginal swab was to employ a speculum so as to test higher up in the vagina. In cross-examination regarding the 130 times more likelihood estimate mentioned above, she testified that a number greater than “1” supports the likelihood that the DNA contributor was W.S. She is never able to say with absolute certainty that it was his DNA. If S.A. wore the defendant’s pants, it would be possible that his DNA could be deposited on her external genitalia.

Regarding the vaginal swab, and the possibility of contamination from clothing, one would not expect the DNA to be found in the vagina if the proper procedure was followed. It is possible that if the vaginal swab touched the external genitalia before extracting the vaginal sample, that that sample could potentially be contaminated. Catherine Nardone [ 24 ] Ms. Nardone was the nurse at Brantford General Hospital on the Sexual Assault Domestic Violence (SADV) team that examined S.A. on December 16, 2021. The forensic examination form she completed was made Exhibit 5.

She collected biological samples by swabbing the external genitalia and by swabbing inside the “vaginal lips”. She did not use a speculum to allow a sample to be obtained from higher up inside the vagina. Findings [ 25 ] Let me say at the outset that I found S.A. to be a thoughtful, fair and impressive witness. Her maturity level appeared to be well beyond her chronological age. She withstood a skilled, detailed cross-examination. My initial skepticism, that this frequency of sexual activity could occur in a house full of people without anyone noticing, was overcome by the evidence regarding sleeping

arrangements and locked doors. [26] S.A.’s explanation as to why she didn’t disclose anything (December 16) or everything (December 17) is perfectlyunderstandable when you take into account a frightened 15-year old girl that is worried about how she will be perceived and concernedabout her family remaining intact. Complainants, especially young ones, disclose at varying times, when they are ready and able. In R.v. DD, 2000 SCC 43 , [2000] S.C.J. No. 44, the Supreme Court of Canada declared “there is no inviolable rule on how peoplewho are the victims of trauma like a sexual assault will behave”.

This is all the more applicable to a child. [27] In addition, I take into account appellate court admonitions that, as a trial judge, I must take a common-sense approach indealing with the evidence of young children and not impose the same exacting standard in the assessment of the evidence of a childwitness as with the evidence of an adult witness. I employ that standard especially regarding the complainant’s testimony that the sexualcontact was an everyday occurrence. In my view, it is extremely unlikely that abuse occurred every single day from age 12 to 15.

Infact, given that the complainant spent some time in that period with her father, it could not have. However, I do not feel that aspect ofthe evidence should be taken literally. That the abuse was occurring on a regular basis to a girl as young as the complainant leads to theperception that it was a daily occurrence when it may well not have been. [28] I also find that the complainant’s response to the questions asked in both examinations (chief and cross) to be measured,directly responsive and fair-minded. She was attempting to answer extremely specific questions about various incidents over a four-yearperiod.

It is not at all surprising that many of those incidents would, in a young person’s attempt at recollection, blur. She wasattempting to be fair when she admitted that she assumed it was the defendant who was the person outside her window, and who, in thedark, had sex with her when she was 12. It would have been much more convenient, if she were fabricating, to identify the defendant. So, as a result, I accept, on its own, the evidence of the complainant that repeated sexual assaults happened.

When one examinesadditional evidence, which tends to corroborate the complainant’s version, the case against the defendant is overwhelming. Corroborative and Confirmative Evidence [29] The most compelling piece of corroborative evidence is the discovery of the defendant either naked, or with his pants down,in a naked 15-year-old’s bed. This alone, despite any possible explanation, is shocking. The only evidence before me as to why thedefendant was in his stepdaughter’s bed, comes from the complainant, whom I believe.

The evidence that he was in her bed comes fromthree witnesses: the complainant, her mother and her brother. Although each has a memory of different states of dress, they all confirmhis presence in her bed that morning. [30] In addition, the complainant’s evidence regarding the sexual relationship is supported by other aspects of the evidence of hermother: • that the defendant was significantly concerned about the complainant accessing birth control to avoid pregnancy. • that S.A.’s room was locked whenever she was in her room.

I appreciate that it is not unusual for a teenager to lock their room,but that reality accords with the complainant’s evidence that the defendant ensured the door was always locked when he entered herroom.

M.A. added, that the defendant was in his sister’s room quite a bit. • that the defendant barely slept with L.A. and opportunity to engage with the complainant was provided, given that L.A. went tobed quite early. [31] And, even though there is some lessening of the effect of the DNA evidence because of a non-standard procedure ofextraction, the defendant’s DNA is found both external to the genitalia and vaginally. The method employed to obtain the vaginalsamples was not standard practice since a speculum was not engaged to provide a preferred sample.

But, in the final analysis, thedefendant’s DNA is located inside the vaginal lips of the complainant. There exists no evidence in this record that explains that. That is,no evidence other than the evidence of the complainant that she had sex with the defendant the previous night. [32] And to be perfectly clear, I find as a fact that the male DNA found belongs to the defendant. Despite DNA probabilities thatoften result in numbers in the millions, 130 times more likely is still significant.

Obviously, so is 920 times more likely and 2,070 timesmore likely. [33] Accordingly, I am satisfied beyond a reasonable doubt that the defendant engaged in a sexual relationship with his underagestepdaughter, and he will be found guilty on all three counts. Released: January 18, 2024 Signed: Justice R. Blouin