)) HER MAJESTY THE QUEEN - v. -, 2013 ONSC 4869

CITATION : R. v. Plourde, 2013 ONSC 4869 COURT FILE NO.: 12-70000699 DATE: 20130730 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN - and - ROGER PLOURDE )) )) )) )) ) ))))))) Christine McGoey , for the Crown Larry H. Moldaver, for Mr. Plourde HEARD: April 22-26, and May 1, 7-9, 2013 Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to

section 486.4 of the Criminal Code of Canada . HAINEY J. REASONS FOR DECISION Overview [ 1 ] Mr. Plourde is charged with sexual assault, threatening to cause death and robbery. The offences are alleged to have occurred during the early morning of Saturday, November 1, 2008 in the City of Toronto. The victim is C.K. [ 2 ] Ms. K. had celebrated Halloween at a club in downtown Toronto. She was returning home around 2 a.m. on November 1. She was sitting on a bench waiting for a bus at a bus stop on O’Connor Drive at the corner of Taylor Drive.

A man approached her from behind, grabbed her neck and said “do as I say and you won’t get hurt”. [ 3 ] Ms. K. resisted and a violent struggle ensued. The man punched her repeatedly in the face and threw her onto the ground. He said “shut the fuck up or I will kill you” and “do as I say and you won’t get hurt”. [ 4 ] She continued to fight back. She screamed and he covered her mouth. She then rolled over with her face down. The man repeatedly pulled her hair and banged her head on the ground.

He threatened to “break” her head on the ground. [ 5 ] He then pulled down her pants and underwear and started to undo his own pants. He inserted his fingers into her vagina. She managed to call 911 on her cell phone. The man then grabbed her purse and walked away. He turned onto Taylor Drive and walked into the ravine on the north side. [ 6 ] The police arrived about 5 minutes later but her attacker managed to escape into the ravine. Although the police searched the ravine with police dogs, they were unable to find him.

[ 7 ] Ms. K. testified that she got a good look at the man’s face. She estimated that she looked at his face for at least 10 minutes while he was assaulting her. She indicated that she was able to clearly see his features because of the light from the illuminated bus stop and the overhead street light. She also observed his whole body for about three minutes as he was walking away toward the ravine. [ 8 ] She was taken to the hospital where she was treated for numerous bruises and lacerations to her face and body. She could not open her mouth or turn her neck.

She suffered headaches and had painful scabs on her head from where her attacker had pulled out her hair. Her injuries were significant and painful. [ 9 ] The police found Ms. K.’s purse and most of its contents including a $20 bill, in the ravine. They found a white Adidas baseball hat that her attacker had been wearing, beside the bench at the bus stop. [ 10 ] Ms. K. first provided a description of her attacker to P.C. Connolly. He was the first police officer to arrive on the scene immediately after the assault. She provided a more detailed description of him in a video-taped interview the following day.

Three days later, she prepared a composite image of her attacker with the assistance of a police artist. [ 11 ] Ms. K. viewed three separate photo line-ups on December 11 and 15, 2008 and on July 2, 2009. None of the photo line-ups contained a photograph of Mr. Plourde. During the photo line-up conducted on July 2, 2009 she told police that it was difficult for her to try to pick her attacker out of the photo line-up because so much time had elapsed since the attack. [ 12 ] The white baseball hat found at the scene of the attack was tested for DNA.

It was initially determined that the DNA profiles of at least three people were on the headband of the hat. None was suitable for comparison. Ultimately a DNA profile suitable for comparison was obtained from the headband in April 2010. It was determined that Mr. Plourde could not be excluded as a major source of DNA on the headband. The probability that someone other than Mr. Plourde was the source of one of the DNA profiles on the headband was estimated to be 1 in 310 million. [ 13 ] As a result, Mr. Plourde was arrested on May 10, 2010 and charged with these offences.

He was interviewed by Detective Thomas of the Toronto Police Service the following day. [ 14 ] Ms. K. did not view a photo line-up that included a photograph of Mr. Plourde after he was arrested on May 10, 2010. Police decided not to have her view a photo line-up that included a photograph of Mr. Plourde because she had told them that she did not think she could pick her attacker out of a photo line-up. [ 15 ] During the preliminary hearing in 2012, and at trial Ms. K. identified Mr. Plourde as the person who had attacked her. At trial, she testified that she was certain Mr.

Plourde was the person who had attacked her. [ 16 ] Mr. Plourde testified at trial. He denied assaulting Ms. K. He indicated that on Halloween 2008, he had gone to a bar on Danforth Avenue called Noah’s Ark, with members of his family. He had a substantial amount to drink and left the bar to go to a crack house not far from his parents’ house. He was living with his parents at the time as he had recently split up with his girlfriend, who is now his wife. [ 17 ] He testified that he spent a good deal of time at the crack house smoking crack cocaine.

When he ran out of money he returned to his parents’ house and got more money from his sister. He then returned to the crack house to smoke more crack cocaine. Eventually he returned to his parents’ house in the early morning. He slept in his father’s car that was parked outside the house so he would not wake his parents. [ 18 ] The crack house is about 1.4 kilometers from the scene of the attack. His parents’ house is about 1.6 kilometers away. [ 19 ] He admitted that the Adidas baseball hat found at the scene of the attack was his.

He testified that he had been wearing it that night but lost it either at the bar or at the crack house. He indicated that he had returned to the crack house the following day to look for it, but it was not there. Issue [ 20 ] There is no dispute that the offences were committed. It is agreed that the identity of the attacker is the sole issue that I have to decide. Positions of the Parties [ 21 ] Crown counsel, Ms. McGoey, relies upon Ms. K.’s description of her attacker to the police, her “compelling and graphic description” contained in her composite image and her in-court identification of Mr. Plourde.

She submits that this evidence, when considered with all of the other circumstantial evidence, establishes beyond a reasonable doubt that Mr. Plourde was the man who attacked Ms. K. She also submits that I should reject Mr. Plourde’s evidence. She argues that it would defy common sense to draw an inference that someone else, who looks like Mr. Plourde and wore his hat, attacked Ms. K. It is her position that the cumulative effect of all of the evidence, including some of Mr. Plourde’s statements to Detective Thomas, establishes his guilt beyond a reasonable doubt. [ 22 ] Defence counsel, Mr.

Moldaver, submits that it has not been established beyond a reasonable doubt that Mr. Plourde was the man who attacked Ms. K. He points out a number of significant dissimilarities between the descriptions provided by Ms. K. and Mr. Plourde’s actual appearance. In particular, his eye colour, hair colour and length and his missing front tooth are all significant features of Mr. Plourde’s appearance that Ms. K. did not describe. Further, Mr.

Plourde’s evidence, which is confirmed by his wife’s testimony, establishes that at the time of the attack he did not have a black puffy coat, carpenter’s jeans or white running shoes. These are the clothes Ms. K. said her attacker was wearing. Mr. Moldaver submits that I should accept Mr. Plourde’s evidence that he did not attack Ms. K. and that he lost his white Adidas hat that night. In the alternative, Mr. Plourde’s testimony coupled with the weak identification

evidence should leave me with a reasonable doubt about whether Mr. Plourde is guilty of these offences. Evidence [ 23 ] I intend to briefly review the evidence relating to the issue of Ms. K.’s identification of Mr. Plourde as her attacker. As I have indicated Ms. K. was asked to provide a description of her attacker on more than one occasion. Ms. K.’s Description at the Scene [ 24 ] P.C. Connolly was the first police officer to arrive at the scene of the attack. He arrived within about 5 minutes after it had occurred. When he arrived Ms. K. was not wearing pants, underwear or shoes. He described her as frantic.

As she got dressed she gave him the following description. [ 25 ] She described her attacker as “male, white, mid to late 30’s, 5' 8″, short blond hair, blue eyes, wearing a black puffy down- filled coat. He was not clean-shaven. He had one to two day’s growth. He was wearing white runners and blue jeans”. Under cross- examination, she agreed that her description to P.C. Connolly was “completely accurate”. She also agreed that her description of her attacker’s hair was “short blond hair” and that blond was the predominate colour she remembered.

She also agreed that her attacker’s hair was “short blond hair brushed forward and not wavy or curly”. Ms. K.’s Video-taped Description [ 26 ] Ms. K. gave a video-taped statement to the police on November 2, 2008. In her statement she gave the following description of her attacker: She described him as a white male, wearing a white Adidas hat that fell off. His hair was short and brushed forward. It was strawberry blond or dirty blond. It had darker colours. It wasn’t all blond. He had scruff on his face but no goatee. He was not clean-shaven. It wasn’t noticeable but she could feel it.

It was similar to a 4 or 5 o’clock shadow. He had greyish blue eyes. He was not wearing glasses. There was nothing in particular that stood out about his eyebrows, mouth, ears or teeth. He had no piercings. His hair was the same length half way around his head. He had no odor. He was not that tall. He was about 5' 9″. He was not large. He was a medium build. He was not muscular. The top part of his body was bigger than the bottom part of his body. He spoke English and did not have an accent. He spoke in a whispery voice. As to his ethnic background he could have been Irish but not Polish.

His skin tone had a pink undertone. He was wearing a big puffy black jacket with a dark t-shirt underneath. His hands and fingers were not long. They were small and chubby. He had thicker hands. He was wearing faded baggy carpenter jeans with no belt and white dirty running shoes. He had no tattoos or marks that were visible. Ms. K.’s Composite Image [ 27 ] On November 4, 2008 Ms. K. met with Guiseppina Rosatti, a forensic artist with the Toronto Police Service. With her assistance Ms. K. prepared a composite image of her attacker. Ms. K. indicated to Ms.

Rosatti that the similarity of the composite image to her attacker was “out of 10 - 8.5, pretty damn close”. [ 28 ] At trial she agreed under cross-examination that the she was still “comfortable” with the accuracy of her composite image. She also agreed that the colour of the eyes in the composite image was “pretty blue” and that was how she “remembered the eyes” of her attacker. [ 29 ] She also agreed that her attacker had a broad jaw and that she was comfortable with the colour and length of the hair in the composite image.

She agreed that her attacker’s hair was “quite short, not over the ears, blondish and certainly not wavy or curly”. The Photo Line-ups [ 30 ] Ms. K. viewed three photo line-ups. On December 11, 2008 she was shown 12 photographs, none of which was a photograph of Mr. Plourde. She indicated that two of the photographs looked like her attacker but probably were not him. At the conclusion of the photo line-up she stated “you know it’s kind of confusing, cause they all, they almost look the same.

Because they fit the description of the guy so it’s hard”. [ 31 ] With respect to one of the photographs (photo number 6) she testified under cross-examination that if the police had arrested the man in the photograph she would not have thought “they had arrested the wrong guy”. She agreed that at the preliminary inquiry she had testified that she thought he looked “very, very much like the perpetrator” but she was not as sure when she testified at trial. [ 32 ] She viewed a second photo line-up on December 15, 2008. None of the 12 photographs she was shown was a photograph of Mr. Plourde.

She did not identify any of the photographs as her attacker. [ 33 ] On July 2, 2009, Ms. K. viewed a third photo line-up. Again, none of the 12 photographs she was shown was a photograph of Mr. Plourde. She indicated that one photograph looked like her attacker but that she was not sure it was him.

She told the police that she would have a hard time picking her attacker out of a photo line-up because of the passage of time. [ 34 ] Under cross-examination she agreed that one of the photographs (photo number 4) “looks a lot like her attacker” and that “she would not have been uncomfortable if the police had arrested him”. She agreed that she would not have thought “they got the wrong guy”. [ 35 ] Mr. Plourde was arrested on May 10, 2010. Ms. K. was advised of his arrest the following day. She indicated that she did not

think she could pick her attacker out of a photo line-up because of the time that had passed. As a result, the police decided not to conduct a photo line-up that included a photograph of Mr. Plourde. Ms. K. never had an opportunity to view a photo line-up that included a photograph of Mr. Plourde. In Court Identification [ 36 ] Ms. K. testified at Mr. Plourde’s preliminary inquiry in 2012. She identified Mr. Plourde as the man who had attacked her. This was the first time that she had seen him. She again identified him as her attacker at trial.

On both occasions she agreed he was the only other man in the courtroom. Under cross-examination she agreed that she was “pretty sure” but “did not know for sure” that Mr. Plourde was the man who had attacked her. Mr. Plourde’s Appearance [ 37 ] Crown counsel filed 17 Toronto Police Service Booking Data Sheets that included photographs of Mr. Plourde (Exhibit number 21). The photographs were taken over an 18 year period from 1992 until May 10, 2010. All of the Booking Data Sheets record Mr. Plourde’s eye colour as hazel. My own observations of the colour of Mr.

Plourde’s eyes confirm that his eyes are hazel. [ 38 ] The Booking Data Sheets record Mr. Plourde’s hair colour as brown. The May 2010 Booking Data Sheet records his hair colour as brown and grey. All of the Booking Data Sheets since 2005 describe his hair as long, curly and wavy. At trial I noted that his hair was brown-grey, long and curly. [ 39 ] At trial I also noted that Mr. Plourde is missing one of his front teeth on the left side of his mouth. The missing tooth is quite noticeable when he opens his mouth to either smile or talk. He testified that the tooth was removed when he was in jail in 2007.

It was missing in October 2008. Mr. Plourde’s Testimony Regarding His Appearance [ 40 ] Mr. Plourde testified that in 2008 he was 39 years old. He is approximately 5' 9″ tall. His eyes are hazel and he has never worn contact lenses to change their colour. He indicated that the length of his hair in the booking photograph taken on May 10, 2010 (Exhibit 33

Q) is the same as the length of his hair on October 31, 2008. He testified that he has never dyed his hair. He has almost always had long hair. He has never had blond or dirty blond hair. [ 41 ] He testified that on October 31, 2008 he was wearing a blue coat, black jeans and black running shoes. His coat was not puffy or quilted. His jeans were not carpenter’s jeans. He admitted that he was wearing a white Adidas baseball hat that his brother had given to him. He lost it that evening.

He denied that he ever had a black puffy quilted coat, white running shoes or carpenter jeans. [ 42 ] Under cross-examination he was asked why his hair was short in photographs taken on June 29, 2012 when he responded to a DNA warrant (Exhibit number 35). He explained that he and his wife’s children had developed head lice shortly before that time and his wife had clipped his hair to get rid of the head lice. Dawn Plourde’s Testimony Regarding Mr. Plourde’s Appearance [ 43 ] Mr. Plourde’s wife, Dawn Plourde, testified that she and Mr. Plourde had been living together since August 2008.

She has known him since they were teenagers. They had separated shortly before Halloween, 2008. She described his hair when they separated as dark brown, wavy and naturally curly. She indicated that it has never looked blond or dirty blond. She has never known him to dye his hair. She testified that the best example of the length of his hair at that time was the photograph of Mr. Plourde marked as Exhibit 33 H, in which his hair is well over his ears. [ 44 ] She confirmed that she had clipped his hair short during the summer of 2012 before he attended in response to a DNA warrant.

She did this because her children had developed head lice. She clipped everyone’s hair to get rid of the lice. She testified that she had never seen Mr. Plourde with short hair since she began living with him in August 2008 other than the one time when she had clipped his hair in 2012. [ 45 ] She testified that as far as she was aware Mr. Plourde has never owned a black quilted coat. She recalled that in the fall of 2008 he had a blue coat. She has never seen Mr. Plourde wear carpenter pants. She also indicated that in October 2008, he had black running shoes. He did not own white running shoes. P.C.

Ellis’ Testimony Regarding Mr. Plourde’s Appearance [ 46 ] P.C. Ellis is a member of the Durham Regional Police Force. He testified that on January 31, 2009, he interviewed Mr. Plourde at his apartment in Bowmanville. At that time, Mr. Plourde had reconciled with Dawn and was again living with her in Bowmanville. P.C. Ellis interviewed Mr. Plourde, who was a person of interest in Ms. K.’s attack, at the request of the Toronto Police Service. [ 47 ] He gave the following description of Mr. Plourde. He was 39 years old, 5' 8″, and 170 pounds. He had hazel eyes, salt and pepper hair, no scars, piercings or tattoos.

He was clean-shaven. His hair was medium length and messy. [ 48 ] Under cross-examination he agreed that Mr. Plourde’s hair was browner when he interviewed him than it was at trial. He indicated that when he interviewed him in January 2009, Mr. Plourde’s hair was over his ears and wavy. Other Circumstantial Evidence Relating to Mr. Plourde’s Identification [ 49 ] The most compelling circumstantial evidence that suggests Mr. Plourde was Ms. K.’s attacker is the white Adidas baseball

hat found at the scene that Ms. K. testified her attacker was wearing. As I have indicated, Mr. Plourde admitted that he was wearing awhite Adidas baseball hat the night that Ms. K. was assaulted. However, he testified that he lost it either at Noah’s Ark bar or at thecrack house he visited that night. [50] Melinda Matte a forensic biologist from the Centre of Forensic Sciences testified that a piece of the hat’s headband was testedfor DNA. The first time it was tested in 2008, the DNA of at least three individuals was found but none was suitable for comparison. Asecond piece of the headband was tested in 2010.

At that time it was determined that Mr. Plourde could not be excluded as a majorsource of DNA on the headband. According to Ms. Matte, the likelihood that another person could share the same DNA profile as Mr.Plourde is 1 in 310 million. Ms. Matte could not say when the different DNA profiles were left on the headband or whether Mr.Plourde’s DNA was left on the headband before or after the other individuals’ DNA. [51] Mr. Plourde admitted that he was familiar with the ravine where the attacker escaped after assaulting Ms. K. He testified thathe had lived in the ravine for a period of time in 2006. [52] Mr.

Plourde also admitted that he was in the area where the assault took place when it occurred. He testified that he was at acrack house located 1.6 kilometers away from the bus stop where the attack took place in the early hours of November 1, 2008. He alsotestified that he ran out of money and returned to his parents’ home to get more money from his sister. His parents’ home is 1.4kilometers away from the bus stop. He then returned to the crack house to smoke more crack cocaine. Eventually he returned to hisparents’ home early in the morning. [53] Mr.

Plourde testified that at the time he was living with his parents because he had split up with his girlfriend, Dawn. She wasliving in Bowmanville with her children. He indicated that he got drunk at Noah’s Ark bar earlier in the evening. He then went to thecrack house and got high smoking crack cocaine. He admitted under cross-examination that he did stupid things when he was high oncrack cocaine. Analysis General Principles [54] I must decide this case on the basis of many well-established principles. The first is that a criminal trial is not a credibilitycontest between witnesses.

I can believe all, some, or none of the evidence given by a witness. The second is that Mr. Plourde ispresumed to be innocent. The third is that the onus of proving the case beyond a reasonable doubt rests at all times with the Crown.Accordingly, even if I find that the evidence establishes that Mr. Plourde is likely or probably guilty he must be acquitted as that level ofproof is insufficient to meet the standard of proof beyond a reasonable doubt. It is a very high standard. [55] Further, in assessing the evidence in this case I am bound by the Supreme Court of Canada's decision in R. v.

W. (D.) (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Plourde's evidence, I must acquit him. If I do not believe his evidence but I amleft with a doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Plourde's evidence, I must be convinced beyond areasonable doubt on all of the evidence that I do accept that Mr. Plourde is guilty. If I am unsure where the truth lies I must acquit Mr.Plourde.

Identification Evidence [56] Our jurisprudence is replete with warnings to trial judges about the inherent weaknesses of eyewitness identification evidence.The Ontario Court of Appeal in the recent decision in R. v. Gough, 2013 ONCA 137 described eyewitness identification evidence as“notoriously unreliable” and urged triers of fact to exercise considerable caution when considering eyewitness identification evidence. [57] The Supreme Court of Canada in Burke v.

The Queen (1996), 105 C.K.C. (3d) 205 stated at page 224 as follows: By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of the inherent frailtiesof identification evidence arising from the psychological fact of the unreliability of human observation and recollection. [58] The Ontario Court of Appeal elaborated on this issue in R. v. Jack, 2013 ONCA 80 at paragraphs 14-17 as follows: [14] It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness identification that must beestablished.

The danger is an honest but inaccurate identification. [15] The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating tothe following areas of inquiry. Was the suspect known to the witness?

What were the circumstances of the contact during thecommission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? [16] Was the sighting by the witness in circumstances of stress? … As well, the jury must be instructed to carefully scrutinize thewitnesses’ description of the assailant … [17] Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight. [59] I have no doubt that Ms. K. was doing her best to truthfully and accurately identify her attacker. I accept that she honestlybelieves that Mr.

Plourde was the man who assaulted, threatened and robbed her. I also accept her evidence that she had a goodopportunity to observe his face for at least 10 minutes because the area at the bus stop was well lit. However, I have the followingconcerns about the reliability of her identification evidence: • Her description of his eyes as blue or blue-grey is inconsistent with the fact that Mr. Plourde’s eyes are hazel;

• Her description of his hair as dirty blond and short is inconsistent with the fact that the evidence establishes that at the time his hair was brown or brown and grey, wavy, curly and long enough to cover his ears; • Ms. K. told the police in her video-taped interview that there was nothing in particular that stood out about her attacker’s teeth. Mr. Plourde is missing one of his front teeth. This is very noticeable when he opens his mouth to talk; • The composite image prepared by Ms. K. is dissimilar to Mr. Plourde in a number of ways.

The shape of the face in the composite image is different than the shape of Mr. Plourde’s face. Mr. Plourde’s jaw is pointier than the composite image. The composite image has a much broader jaw than Mr. Plourde’s jaw. The composite image’s eyebrows are narrower than Mr. Plourde’s eyebrows. The composite image’s face is broader and appears heavier than Mr. Plourde’s face. As I have already mentioned, the hair colour, hair length and eye colour in the composite image are all dissimilar to Mr. Plourde’ eyes and hair; • Ms. K. told police that her attacker did not have an accent. Mr.

Plourde has an east coast accent. Detective Thomas commented upon Mr. Plourde’s Newfoundland accent when he interviewed him on May 11, 2010; • Ms. K.’s description of what her attacker was wearing is inconsistent with what Mr. Plourde testified he was wearing that night. I accept Mr. Plourde’s evidence, which is confirmed by Dawn Plourde’s testimony, that he did not have a puffy quilted black coat, carpenter’s jeans or white running shoes in October 2008; • Finally, I find it troubling that the police elected not to have Ms. K. view a photo line-up that included a photograph of Mr. Plourde after he was arrested.

This would have provided important identification evidence. The police decided not to conduct a photo line-up that included a photograph of Mr. Plourde because Ms. K. felt she could not identify her attacker due to the passage of time. The first time that Ms. K. saw Mr. Plourde was two years later at his preliminary inquiry. This renders her in-dock identification of Mr. Plourde then and again one year later at his trial extremely unreliable. I therefore attach very little weight to this in-dock identification evidence. [ 60 ] For all of these reasons, I find that Ms.

K.’s eyewitness identification evidence alone falls short of establishing that Mr. Plourde was the man who assaulted, threatened and robbed her. I turn now to the other evidence the Crown relies upon to confirm Ms. K.’s identification evidence. Other Evidence Confirming Ms. K.’s Identification [ 61 ] Crown counsel submits that Ms. K.’s eyewitness identification evidence is confirmed by other circumstantial evidence, including Mr. Plourde’s statement to Detective Thomas. Ms. McGoey submits that the following evidence confirms Ms. K.’s identification evidence: • Mr.

Plourde’s DNA was found on the white Adidas hat that he admits he was wearing that night; • Mr. Plourde admitted his familiarity with the ravine where the attacker escaped; • Mr. Plourde admitted he was walking alone near the scene of the attack at roughly the time it occurred.

He was high on alcohol and drugs and he needed money to buy more crack cocaine; • At the time he had recently split up with his girlfriend and was having difficulties with his mother; • Portions of his statement to Detective Thomas contain admissions and expressions of remorse consistent with his guilt. [ 62 ] The most compelling circumstantial evidence is the fact that Mr. Plourde’s DNA was found on the white Adidas hat that Ms. K.’s attacker left at the scene. This is important evidence that ties Mr. Plourde to Ms. K.’s attacker. Defence counsel argues that the hat is moveable evidence.

It does not have the same effect as evidence that Mr. Plourde’s DNA had been found on Ms. K.’s body or on her clothing or her purse that the attacker stole from her. Defence counsel also points to the fact that the DNA of at least three persons was found on the hat. Ms. Matte could not say whether Mr. Plourde was the last person to leave his DNA on the hat or when the other persons left their DNA on the hat. [ 63 ] It is significant that Mr. Plourde admitted that he was wearing the hat the night of the attack.

It is also significant that he was walking alone less than two kilometers away from the scene of the attack. Crown counsel also points out that he was high on alcohol and drugs at the time. He had recently split up with his girlfriend. He needed money to buy more crack cocaine. These circumstances raise a strong suspicion that he attacked Ms. K. [ 64 ] I agree that these circumstances raise a suspicion that Mr. Plourde attacked Ms. K. However, they must be considered in the light of his testimony. Mr. Plourde provided a detailed account of his activities during Halloween night and the morning of November 1, 2008.

I found him to be a credible witness when he described his activities and denied that he had assaulted Ms. K. He gave his evidence about these events in an honest and straight-forward manner. His evidence in this regard was internally and externally consistent. He was subjected to a skilful and thorough cross-examination. He did not waiver from his assertion that he did not assault Ms. K. For these reasons I accept his evidence. Mr. Plourde’s Statement to Detective Thomas [ 65 ] Mr. Plourde was arrested in Bowmanville when he returned from work on May 10, 2010.

He was transported to Toronto where he was booked at 54 Division. He remained there in a cell overnight. The following morning he was interviewed by Detective Thomas in an interview room at 54 Division. The video-taped interview lasted just over four hours.

[ 66 ] During the trial, I ruled that Mr. Plourde’s statement to Detective Thomas was admissible even though a highly improper incident involving Mr. Plourde had occurred in the cells during the night. At approximately 4 a.m., two uniformed police officers, who were not involved with Mr. Plourde’s case, stood outside his cell. One of the officers, P.C. Nanton, said to the inmate in the cell next to him, “This guy rapes little girls”. The officers left the cell area and returned a few minutes later when P.C. Nanton said to Mr. Plourde, “I should do to you what you did to her”. [ 67 ] Mr.

Plourde testified that he feared for his safety as a result of these comments. He was concerned that other prisoners would assault him on the way to court because he had been identified as a sex offender by P.C. Nanton. In my ruling on the voir dire , I found that his fears were reasonable under the circumstances. I did not accept his evidence that he only continued to talk to Detective Thomas to prolong the interview so that he would not be transported to court with other prisoners.

However, I did find that he had a “self- induced” belief that he had to say certain things to Detective Thomas to ensure that the Detective would follow through with his promise to arrange protective custody for him. [ 68 ] Crown counsel relies upon a number of statements Mr. Plourde made to Detective Thomas in support of her position that he was Ms. K.’s attacker. Defence counsel points out that Mr. Plourde indicated to Detective Thomas on at least 19 occasions during the interview that he had nothing to say about Ms. K.’s assault until he spoke to his lawyer.

He also denied assaulting her on three occasions. [ 69 ] The most significant statements Mr. Plourde made to Detective Thomas that are relied upon by the Crown are the following: Det. Thomas: “Could you have made a mistake that night?” Mr. Plourde: “If I did, I don’t remember.” Det. Thomas: “Was this the only one?” Mr. Plourde: “I’ve never done anything like that. I’m not admitting to nothing. Did I do any rapes on the Danforth?” Det. Thomas: “No.” Mr.

Plourde: “Excluding that night that you’re discussing here with me today, and you’re trying to get a confession out of me for, I was – I ever have sexually assaulted anybody in any way shape or form in anywhere in this world? No, I have not.” [ 70 ] Crown counsel also submits that many of Mr. Plourde’s other comments during the interview demonstrate an interest in and a memory of the attack. Ms. McGoey also argues that many of his comments display remorse and sympathy for Ms. K. [ 71 ] Mr.

Plourde explained that he knew that Detective Thomas was trying to get him to confess and he was, therefore, choosing his words carefully. He answered one of the questions relied upon by the Crown by excluding the night in question because he had told Detective Thomas that he would not talk about Ms. K.’s assault until he had spoken to his lawyer. He also explained he was trying to make Detective Thomas think he was eventually going to confess to the assault so that the Detective would keep his promise and arrange for protective custody. [ 72 ] I accept Mr.

Plourde’s explanation for his comments to Detective Thomas. Mr. Plourde had good reason to fear for his safety after P.C. Nanton’s highly inappropriate comments. It was reasonable for him to suggest to Detective Thomas that he might eventually confess to ensure that Detective Thomas arranged to have him placed in protective custody. To the extent that any of his comments to Detective Thomas appear to be inculpatory, I am satisfied that they resulted from his concerns for his safety and his desire to please Detective Thomas. [ 73 ] For these reasons I do not find that Mr.

Plourde’s statements to Detective Thomas are sufficiently compelling to overcome the weaknesses I have identified in Ms. K.’s eyewitness identification evidence. [ 74 ] I do not find the circumstantial evidence relied upon by the Crown to be sufficiently compelling to overcome the weaknesses in Ms. K.’s eyewitness identification evidence. Conclusion [ 75 ] There is no doubt that Ms. K. was brutally assaulted, threatened and robbed on November 1, 2008. She suffered serious injuries as a result of the attack.

She was an honest and truthful witness who did her best to accurately describe her terrible ordeal and to identify her attacker. I am satisfied that she honestly believes that Mr. Plourde sexually assaulted, threatened and robbed her. [ 76 ] However, the jurisprudence makes it clear that I must be satisfied beyond a reasonable doubt on all of the evidence that Mr. Plourde committed these offences. Having assessed the evidence as a whole, I am not satisfied beyond a reasonable doubt that Mr. Plourde was the person responsible for sexually assaulting, threatening and robbing Ms. K. that night.

I therefore find him not guilty of all charges. ________________________ HAINEY J. Released: July 30, 2013

CITATION : R. v. Plourde, 2013 ONSC 4869 COURT FILE NO.: 12-70000699 DATE: 20130730 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and - ROGER PLOURDE REASONS FOR DECISION HAINEY J. Released: July 30, 2013