)) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 6134

CITATION: R. v. Sabrie, 2017 ONSC 6134 COURT FILE NO.: 17-50000258-0000 DATE: 20171013 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – ABUKAR ALI SABRIE Defendant )))))))) ) ) A. MacGilvray, for the Crown S.

Malik, for the Defendant HEARD: October 2, 3, 4, 5 and 6, 2017 Subject to any further Order by a Court of competent jurisdiction, an Order has been madein this proceeding directing that the identity of the complainant and any information thatcould disclose such identity shall not be published in any document or broadcast in any waypursuant to s. 486.4 of the Criminal Code of Canada. Byrne, j. reasons for judgment INTRODUCTION [1] Abukar Ali Sabrie comes before this Court charged with one count of sexual assault on January 10, 2016. [2] Mr.

Sabrie elected trial without a jury. [3] The evidence on this matter was heard succinctly over the course of four days. The Crown relied on the evidence of fivewitnesses, the complainant H.J, two Toronto Police Officers involved in the investigation, the nurse who administered the sexual assaultkit and Ms. Shacker from the Center of Forensic Science. Mr. Sabrie testified on his own behalf. No other witnesses were called. [4] This is my judgment. THE PRINCIPLES TO BE APPLIED [5] The principles to be applied in this case are the same as those to be applied in any criminal trial. [6] In this case, Mr.

Sabrie is presumed to be innocent, unless and until the Crown has proven each essential element of theseoffences beyond a reasonable doubt. [7] I remind myself that reasonable doubt is based upon reason and common sense. It is logically connected to the evidence orthe lack of evidence. [8] It is not enough for me to believe that Mr. Sabrie is possibly or even probably guilty. Reasonable doubt requires more. As astandard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

At the same time, reasonabledoubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [9] Finally, in assessing the credibility of the witnesses in this case, I have reminded myself of the principles articulated by theSupreme Court of Canada in R. v. W.(D.), (1991) (SCC), 63 C.C.C. (3d) 397.

OVERVIEW OF THE EVIDENCE [ 10 ] I will now provide a very brief overview of the evidence. I will further develop the evidence when necessary in my analysis. The Undisputed Facts [ 11 ] The undisputed facts in this case are as follows. [ 12 ] There is no dispute that on January 9, 2016, Mr. Sabrie was operating a Beck Taxi and that his shift started at approximately 5p.m. [ 13 ] At some point during his shift, he picked up a young man by the name of K.J.. At K.J.’s request, Mr. Sabrie also picked up the complainant H.J. Mr. Sabrie and the complainant were strangers and did not know each other prior to this night.

Mr. Sabrie drove the two young passengers to his apartment building. At approximately 11:43 p.m. all three entered the building and went to his apartment. [ 14 ] At 12:15 a.m., Mr. Sabrie returned to his cab and went back to work. He re-entered his apartment briefly at 1:45 a.m. and then again at 1:48 a.m. At 2:24 a.m., Mr. Sabrie drove K.J. home and then re-entered his apartment for a final time at 2:43 a.m. [ 15 ] There is no dispute that when Mr.

Sabrie returned to his apartment both at 1:45 a.m. and 2:24 a.m., the complainant was passed out from drinking alcohol and asleep in his bed. [ 16 ] There is also no dispute that at some point prior to 3:35 a.m., the complainant woke up and found herself sleeping next to Mr. Sabrie. The complainant had no memory of how she got to the bed or what happened while she was in the bed. When she woke up, in her words she “freaked out” and began yelling at Mr. Sabrie.

Immediately upon leaving the apartment she called the police. [ 17 ] The complainant was taken to Sunnybrook Hospital where Nurse Judy Waldmen administered a sexual assault kit. The administration of the sexual assault kit included a swab of the complainant’s left breast. That swab was sent to the Centre of Forensic Science for testing and analysis. There is no dispute that a DNA profile was generated from this swab and that Mr. Sabrie could not be excluded as the source of that DNA.

The Disputed Facts [ 18 ] The complainant testified that she and her friend K.J. were drinking in the cab on the way to the accused’s apartment. She said she continued to drink inside the apartment and may have taken

part in the smoking of marijuana. Her last memory before waking up is sitting in a chair in Mr. Sabrie’s apartment. She believes she passed out while sitting in the chair. [ 19 ] Her next memory is waking up in Mr. Sabrie’s bed. She testified that Mr. Sabrie was asleep next to her with his arm across her body and that she was half naked. She testified that she did not have her top or bra on and that Mr. Sabrie had no shirt on. She described herself as freaking out and said she started yelling at Mr. Sabrie demanding that he tell her what happened. She said Mr.

Sabrie would not tell her what happened and told her to leave. She testified that she left and called the police from the lobby of the building. [ 20 ] Mr. Sabrie testified that when he returned to his apartment after driving K.J. home, the complainant was still asleep in his bed. He said she was in the same position from earlier and had not moved. He said he tried to wake her up but that she did not respond. He testified that he then lay down in the bed next to her and fell asleep. He said he was wearing a t-shirt, underwear and a traditional Somali wrap.

He testified that he woke up to the complainant yelling and asking him where her phone was. He said she was fully dressed when she got out of the bed. He said that although he was too tired to drive her home, he did offer to pay for a cab. He said she grabbed her jacket and ran out of the apartment. [ 21 ] He testified that he did not make physical contact with the complainant when asleep next to her. He adamantly denies touching any part of the complainant’s body intentionally or inadvertently. Analysis [ 22 ] I will first turn to the evidence of Mr. Sabrie who testified on his own behalf. [ 23 ] Mr.

Sabrie is 51 years of age and has been a taxi driver in Toronto for almost 14 years. He testified that he is currently taking medication for schizophrenia, a disease that he was diagnosed with in 1993. Mr. Sabrie was assisted by a Somali interpreter, although it became apparent throughout the course of the trial that Mr. Sabrie could speak, understand and read English. [ 24 ] After a thorough review of Mr. Sabrie’s evidence, I find myself unable to place any weight upon it. And here is why. [ 25 ] Most problematic was that Mr.

Sabrie provided three different versions of what happened after the complainant woke him up. In examination-in-chief, Mr. Sabrie testified that he woke up because the complainant was yelling and wanted to know where her cell phone was. He said he told her the phone was on the table and she then said she was going have him and K.J. arrested and put them in jail. [ 26 ] In cross-examination, Mr. Sabrie added that when the complainant woke him up she asked him who had sexual intercourse with her. She asked if it was him or K.J.. [ 27 ] I don’t accept Mr.

Sabrie’s answer that he did not provide this information during examination-in-chief because the question

was not asked of him. Mr. Sabrie provided many details about what happened when the complainant woke up. In my view, this was a deliberate omission. [ 28 ] In his statement to the police, Mr. Sabrie did not mention that the complainant was looking for her cell phone when she woke him up. In his statement to police he said when the complainant woke she asked where her shoes were and then she told Mr. Sabrie that the other guy in the apartment had sex with her. His exact words to the officer were “he fuck her”. [ 29 ] Mr. Sabrie was unable to provide any reasonable explanation for these inconsistencies.

Defense counsel chalked it up to fragmented thoughts as a result of English no being Mr. Sabrie’s first language. I don’t agree and here is why. Despite English not being Mr. Sabrie’s first language, he seemed quite capable in the courtroom and when giving his statement of communicating and expressing himself in English. There is no indication that he was confused or suffering from a lack of clarity. Moreover, Mr. Sabrie’s statement that the complainant told him that the other guy had sex with her was not prompted by the officer. Mr.

Sabrie seemed to offer it up spontaneously without any prodding from the officer. In my view, he did so in an effort to take the focus off of himself. [ 30 ] Apart from these inconsistencies, there were portions of Mr. Sabrie’s evidence that made no sense. It made no sense that Mr. Sabrie was prepared to allow K.J. and the complainant to spend the evening in his apartment drinking. On his evidence, he barely knew K.J.. He did not know his last name, he did not know his family and K.J. had never been to his apartment prior to this night. It made no sense to me that Mr.

Sabrie would get into bed next to a 21 year intoxicated young woman who was a complete stranger to him. [ 31 ] For these reasons, I find myself unable to place any weight on Mr. Sabrie’s evidence and I am not left in a reasonable doubt by it [ 32 ] My analysis however does not end there. [ 33 ] I remind myself that it is not for Mr. Sabrie to prove his innocence. The onus remains squarely on the shoulders of the Crown to prove Mr. Sabrie’s guilty beyond a reasonable doubt. [ 34 ] The complainant, 21 year old H.J. was the main Crown witness. She candidly testified that she arrived at Mr.

Sabrie’s apartment with K.J., and after drinking a significant amount of alcohol, passed out. Her last memory was that she was sitting on a chair fully clothed in Mr. Sabrie’s bachelor apartment. Her next memory was waking up half naked in Mr. Sabrie’s bed, with Mr. Sabrie sleeping next to her with his arm across her body. [ 35 ] She can offer no evidence of being assaulted. She does, however, remember waking up and in her words “freaking out”. She explained that she was freaking out because she was half naked with a man she did not know. She was further concerned because this man, Ms.

Sabrie, was not wearing a shirt. [ 36 ] She testified that she does not know how she got into the bed and does not know how, when or why her clothes were removed. During the course of her evidence there was initially, a lack of clarity about what pieces of clothing were removed. In examination-in- chief, she said when she woke up she was not wearing her bra, her shirt or her tights. She could not remember if she was wearing her underwear. In cross-examination during the preliminary hearing, she testified that she did have her bra on but not her skirt and stockings.

In her examination-in-chief at the preliminary, she said her bra was off and her shirt was off. She testified that she was confused during the cross-examination at the preliminary hearing and that she now clearly remembers her bra being off. I accept H.J.’s explanation that she was confused and am not troubled but this inconsistency. [ 37 ] H.J.’s evidence was not perfect. But perfection is not the test. I am mindful that she lied to the police about her name when they first attended the scene.

Given that she was admittedly still somewhat intoxicated when she called the police, I am not surprised that she lied about her identity. It is not so unusual that a person would want to report an incident of this nature but remain anonymous. In H.J.’s case, she clearly wanted to cooperate and did so as the investigation progressed. In my view, the lying about her name was nothing more than a knee jerk reaction due to her level of intoxication. I am not troubled by it. [ 38 ] I find that H.J. did her best to recall what she could of the evening.

She had a visceral response each and every time she spoke about waking up half naked next to Mr. Sabrie. She had no hidden agenda or motivation to lie. I find that H.J. was telling the truth, as best she could. I find as fact that she did wake up, in the bed next to Mr. Sabrie with her shirt and bra off. [ 39 ] Unfortunately, her lack of recall limits the value of her evidence. [ 40 ] Ultimately, this case turns on the DNA evidence of Ms. Shacker from the Centre of Forensic Sciences (“CFS”).

As set out in the agreed facts, a swab of the complainant’s left breast was taken during the administration of the sexual assault kit. The swab was sent to the CFS for analysis. Ms. Shacker testified as an expert witness in the comparison and analysis of DNA. Ms. Shacker was able to generate a DNA profile from the swab and when compared with the DNA of Mr. Sabrie, she concluded that he could not be excluded as the DNA donor. She explained that when an individual cannot be excluded, it means they are the donor, or they are not the donor but coincidentally share the same profile as the donor.

To determine the possibility of it being a coincidental match, she conducted a random match probability test. She testified that the results of the test show that Mr. Sabrie cannot be excluded as a donor and the probability that another person would randomly share his DNA profile is 1 in 33 quadrillion. The only other exception which does not apply to this case is that of identical twins. [ 41 ] I accept Ms. Shacker’s evidence on this point and I find as a fact that it was Mr. Sabrie’s DNA that was found on the complainant’s left breast. [ 42 ] Ms.

Shacker could not speak to the amount or quantity of the DNA that was deposited in this case. She could not say if it came from a wet bodily fluid or dry skins cells. She could only say that it was enough to generate a profile. She testified that in order to generate a profile there must be a sufficient transfer of DNA. Not every transfer of DNA will result in a profile. [ 43 ] The real question in this case is how did Mr. Sabrie’s DNA get on the complainant’s left breast? What was the source of the

DNA? Where did the DNA come from? [ 44 ] There are a number of possibilities:

(1) Direct and intentional transfer from a bodily fluid;

(2) Direct and intentional transfer from dry skin cells;

(3) A secondary transfer from dry skin cells/and or dry saliva residue on Mr. Sabrie’s bedding;

(4) A tertiary transfer - from skin cells being left on an object in the apartment that the complainant handled and they touched her breast. [ 45 ] These are just some of the infinite possibilities. Ms. Shacker could not discount any one of them as being the source of the DNA, but she did find some more likely than others. [ 46 ] She testified that the more steps that are involved in the transfer process reduces the likelihood of detection and/or generating a profile. I accept this. It makes common sense. [ 47 ] She testified the most likely route is when a wet bodily fluid is directly deposited.

The second most likely route is a direct transfer of dry skin cells associated with friction or vigorous rubbing. This also makes common sense. And if I were to accept it - I would have little difficulty in finding that the Crown had met its onus. [ 48 ] I remain concerned, however, about the prospect of a secondary transfer. That is, the transfer of DNA without body to body contact. Ms. Shacker testified that this type of transfer is possible if there is a wet bodily fluid present but less likely if that bodily fluid is dry or there is only a small amount of dry skin cells present.

She testified that if a very very large amount of dry skin cells were present that would increase the potential for a transfer of DNA. [ 49 ] Mr. Sabrie testified that he drools when he sleeps. He testified that he was resting in his bed just prior to starting his shift at 5 p.m. There is no evidence that he was sleeping or drooling at that time, but even if he were asleep and drooling, the drool would have dried by the time the complainant got into the bed more than 7 hours later. Mr.

Sabrie testified that he had not washed his duvet since October 2015 and that the sheets had not been washed in a week or two. [ 50 ] It is impossible to know how many of Mr. Sabrie’s dry skin cells or dry drool were present on his bedding when the complainant was in it. Ms. Shacker testified that different people deposit different amounts of DNA. I do not know if Mr. Sabrie is a person who deposits a little or a lot of DNA. [ 51 ] I do know that the complainant was in that bed for a number of hours - which is not insignificant.

Crown counsel argues that she was motionless in the bed thereby reducing the chances of transfer by friction. I appreciate that Ms. Sabrie agreed she was motionless for the short period of time he observed her. Aside from the concerns I have already alluded to about the reliability of Mr. Sabrie’s evidence, I am not convinced she lay motionless the entire time she was in that bed. [ 52 ] There is also the possibility that Mr. Sabrie did drool in the 15 minutes or so that he slept next to the complainant and in her waking up she came into contact with that drool. [ 53 ] While I appreciate that Ms.

Shacker concluded that some transference scenarios were more likely than others, her conclusions seemed to be grounded in common sense rather than as a result of scientific studies or testing. Absent more information about the scientific foundation for her conclusions, I find myself without any real ability to assess them and am cautious about placing any weight upon them. I am also mindful that Mr. Shacker was qualified as an expert in the comparison and analysis of DNA. She was not qualified as an expert in the transference of DNA.

It is critical that an expert be confined to giving evidence only in those areas that they have been properly qualified. I find that Ms. Shacker’s evidence about transference was outside of her area of expertise and as such impacts the amount of weight I am prepared to place upon it. [ 54 ] Crown counsel argues that anything other than direct transference is far-fetched and does not amount to a reasonable doubt. I disagree. There is real potential in this case for secondary transference.

And given the many unanswered questions I have about it, I am unable to discount it. [ 55 ] I accept that the complainant was topless when she woke up in Mr. Sabrie’s bed. I am troubled that Mr. Sabrie would get into bed with a 21 year old intoxicated woman who was passed out. A woman that was a total stranger to him. I accept that his DNA was located on her left breast and it should not have been there. [ 56 ] What I am not sure of is how it got there. For the reasons stated, there is a possibility that it was transferred without any direct contact.

And that possibility has left me very much in a state of reasonable doubt. [ 57 ] Our law dictates that Mr. Sabrie get the benefit of that reasonable doubt. [ 58 ] Accordingly, the charge is dismissed.

Byrne, J. Released: October 13, 2017 CITATION : R. v. Sabrie, 2017 ONSC 6134 COURT FILE NO.: 17-50000258-0000 DATE: 20171013 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ABUKAR ALI SABRIE Defendant REASONS FOR JUDGMENT Byrne, J. Released: October 13, 2017