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Judge overturns Manitoulin man's 2017 conviction for sex assault

Questions about how rape kit was handled leads judge to order a new trial
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(File)

Questions about how a rape kit was handled after a woman was sexually assaulted in April 2015 has convinced a Superior Court judge overturn a conviction in the case and order a new trial.

The suspect was convicted in November 2017 of sexually assaulting the then 16-year-old girl during an overnight house party in Gore Bay. The trial transcripts say the victim went to a “girls night” party at a friends house, where some boys showed up later in the evening.

Sometime in the early morning hours, she went upstairs to sleep in an empty bedroom, belonging to the son of the family who owned the home. She went to sleep in one of the single beds, and the son and his friend came in later to sleep in another bed in the room.

“The complainant awoke in the dark to a male on top of her, with his penis inside of her,” the transcript says. “She did not know who this male was, and she was terrified. She pretended to be asleep. She did not see her assailant because of the darkness in the room, and because she kept her eyes closed during the incident.”

While she didn't see him, she heard him saying her name in a deep voice while the assault continued. When he finally fell asleep, she fled, hiding behind a door when he came looking for her in the darkness -- and eventually getting into bed with other females who had been at the party.

“All that the complainant could describe of her assailant was his boxer shorts and that he seemed to have a deep voice when she heard him say her name,” the transcript says. 

After she left the home, she contacted police immediately, and  was taken to Health Sciences North where a nurse named Barb conducted a rape kit examination.

“Neither 'Barb' nor anyone else was called to testify about the examination of the complainant, about the taking or preservation of any samples of bodily substances that were taken from the person of the complainant, or about the nature of any paperwork that accompanied the rape kit: who filled it out, when or where it was filled out, the accuracy of such paperwork, or whether it was made in the usual and ordinary course of hospital business,” the judge wrote.

At trial, it emerged that an officer had transported the kit from Sudbury to Gore Bay, but the officer who had handled it was not called to testify. It was then sent to the Centre of Forensic Sciences (CFS) for DNA examination.

DNA was taken from all three males in the room that night, with the two males sleeping in the other bed ruled out. As for the suspect, the centre concluded he could not be ruled out, based on DNA taken from the victims lips and breasts. That DNA evidence was the main reason for he was convicted, according to the trial judge.

The appeal was based on three factors: the delay in bringing the case to trial (which was dismissed) and the issue of whether the Crown proved the victim didn't consent to the sexual activity (also dismissed).

But the third factor – how the rape kit was handled and presented as evidence – was enough to overturn the conviction, the judge ruled.

“The Crown at trial adduced no evidence regarding the rape kit examination of the complainant by the nurse or by anyone else, the taking of samples of bodily substances from the person of the complainant, the preparation of samples of bodily substances, the packaging of samples, or the identification of samples,” the transcript says. 

“The officer who collected the rape kit from Sudbury was not called as a witness, and (the other police officer) could offer nothing but inadmissible hearsay about how the kit came to Gore Bay from Sudbury.”

Even the idea the DNA came from the breast and lips of the victim is hearsay, and not validated by evidence presented by the Crown at trial, the judge ruled.

“The trial judge erred in using the CFS results in any way to determine these facts,” the transcript says. “Indeed, there is scarcely any evidence to indicate who did take the samples, except unsuitable evidence from the complainant that she was examined by a nurse named 'Barb.'”

While overturning the conviction, the judge ruled he would not order an acquittal on the charges because there is other evidence that could be used to gain a conviction, including:

  • The two males in the other bed in the room in which the complainant had allegedly been assaulted testified they saw the suspect in the bed that had been occupied by the victim;
  • In her statement to police, the victim described going back into the bedroom later in the morning to collect her cellphone from beside the bed, at which point the accused grabbed her buttocks;
  • In a text conversation the day after the alleged sexual assault, the suspect admitted to the victim he remembered getting into the same bed as her;
  • There was evidence that the appellant also apologized to the complainant the day following the assault, in a separate text message.

As a result, he ordered a new trial. Considering the already lengthy delays in the case, the judge ordered it take place as soon as possible, and suggested it be moved to another community if scheduling becomes a problem.

Read the full transcript here.

@darrenmacd


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Darren MacDonald

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